¶ 1 Leave a comment on paragraph 1 0 International law has, since inception, been closely associated with religion. Its founder, Grotius, relied heavily on biblical and natural law sources to demonstrate a universal law of nations; while Vitoria, another jurist during international law’s formative years argued on legal and moral principles for a cosmopolitan moral order. Whereas the individual person, or collectively humankind, is cosmopolitanism’s basic unit, current international law system remains largely based on the Westphalian notion that structures the world upon the fixity of the nation state. International law has strands of legal, political and moral cosmopolitanisms woven into its structure; however, it stays anchored on the principle of sovereign state supremacy, hence remains a conflicted framework for the regulation of, among others, global human-rights and migration issues.
¶ 2 Leave a comment on paragraph 2 0 This chapter will demonstrate the convergence of law and religion and will interrogate the construction of realist and idealist discourses in international law, with the former focusing on the supremacy of states within the international arena and the latter on international law’s cosmopolitan inroads. The binary opposition between realism and idealism will be teased out using discourse analysis. The choice of discourse analysis is based on certain assumptions underpinning discourse analysis as tool for research: our knowledge and world views do not necessarily reflect what is real out there, but are rather products of how we frame and categorise society through language and discourse; or else, our perceptions are mainly societal artifacts, that is, ‘products of historically situated interchanges among people’. This suggests language is more than a mode of communication; through language the reality of the world is also structured and constructed. The historicity of knowledge, however, should not be misunderstood in terms of plain arbitrariness. What a certain community regards as accepted knowledge is by no means arbitrary, but the outcome of ‘discursive formations that critical scholarship can reconstruct and interpret’. Our use of language, thus, may be regarded as a kind of action, for if our respective versions of the world are constructed through language, the different social understandings of the world generated through various discourses would necessarily lead to different social actions, and consequences.
¶ 3 Leave a comment on paragraph 3 0 While realism continues to be the hegemonic school of thought within current international law and politics discourse, using Baha’i frameworks, this chapter will argue for more dialogue and consideration of idealist discourses if we are to find alternative—and perhaps sustainable—models of international engagement. Part 1 will discuss the convergence of international law and religion, and will argue that not only was international law founded, in part, from religious principles but that cosmopolitan worldviews, borrowed from natural law and religion, have been woven into the system by its founders. Part 2 discusses how realism came to be adopted and remained the dominant discourse within international law. This part argues for a reconceptualization of international law as realpolitik (with its features of power as contest and international anarchy) towards thinking of it along cosmopolitan lines. Part 3 utilises Baha’i cosmopolitan idealism as a counterpoint to current realist thinking, and argues for greater cosmopolitan considerations under international law. Baha’i cosmopolitanism, which began in 1844, represents a ‘link to earlier Stoic’ idealism as well as a rearticulation of the ethical cosmopolitanisms of the past religions that contrasts with modern state-centered world-views. Part 4 focuses on two prominent areas of international law, namely human rights and migration, and utilises discourse analysis and the critical theories of Marx and Gramsci to further explore areas of tension, contradiction and incompatibility between realism and idealism. The chapter concludes by arguing for a more open dialogue between international law and religion, with the aim of constructing alternative and perhaps sustainable models of engagement for humanity.
1. Convergence of International Law and Religion
¶ 4 Leave a comment on paragraph 4 0 Based primarily on treaties and custom, international law consists of ‘legal rules’ considered ‘binding upon states and other international persons in their mutual relations’. Although current international law is based on the nation-state as the highest organised sovereign unit in the global arena, international law was originally founded along Stoic cosmopolitan lines of thinking based on both divine and human reason which regard humankind as members of a world community, under one universal law. Stoic philosopher Zeno argued that all people embodying the same divine spark and possessing the capability divine reason (logos), are meant to belong to an ever-expanding inclusion of self, family, city and humanity. In agreement with Zeno, Cicero posited that all are equal not by virtue of their property or learning but in their possession of the faculty of reason and the ‘consensus of what was honourable or contemptible’.
¶ 5 Leave a comment on paragraph 5 0 Francisco de Vitoria, one of the early jurists of international law, regarded the world as a global nation. His conception of the world as republic (res publica pars totius orbis), invoked Christian notions of ‘all men as children of God’ and Stoic beliefs on the equality of all human beings ‘on the basis of their common participation in the logos, the divine reason which ruled the world’. Vitoria argued ‘[m]ankind is a whole which exists before’ and ‘with its parts, the individual nations.’ The enforcement of the law of nations (jus gentium), as international law was then called, is derived from natural law and not from convention: ‘The law of nations derive its power of enforcement, not from the will of mankind or the sovereign States, but from the moral norm of a just coexistence of nations’.
¶ 6 Leave a comment on paragraph 6 0 Hugo Grotius, considered the ‘father’ of modern international law, argued that while international law may be validated from secular and natural law principles, these are not always separate from religious precepts. His statement, ‘[w]hat we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him’, should not be taken in isolation, as in fact Grotius also frames his work on religious and, arguably, cosmopolitan conceptions. His view on the laws of war, for instance, is universal in application: there is a ‘common law among nations, which is valid alike for war and in war’. Additionally, he invoked Christian principles that a king should not undertake to go to war ‘rashly’, even if he has been wronged:
¶ 7 Leave a comment on paragraph 7 0 Regarding punishments it is first of all our duty, if not ‘as men, assuredly as Christians,’ readily and gladly to pardon the wrongs done to us, just as God pardons us in Christ (Ephesians 4:32). ‘To be free from anger,’ says Josephus,’ ‘in respect to the things for which guilty men are liable to the penalty of death, approaches the nature of God.’
¶ 8 Leave a comment on paragraph 8 0 Grotius’ views on just and unjust war influenced modern day concepts on state aggression, liberation and self-defense. His more enduring contribution, however, consisted in his advocacy of the freedom of the seas (mare liberum) and opposition to the closed sea (mare clausum) doctrine which prohibited states from navigating the high seas under the Portuguese area of jurisdiction without permission of the king of Portugal. Grotius in 1609 proclaimed a new doctrine that the sea was international territory and that all states were free to use the high seas for trade. He invoked natural law and divine will, stating nations which appropriate the oceans to themselves ‘violate nature herself’ thereby presaging cosmopolitan arguments on the common use by all nations of the high seas:
¶ 9 Leave a comment on paragraph 9 0 They, therefore, that take away this, take away that most laudable society of mankind; they take away the mutual occasions of doing good and, to conclude, violate nature herself. For even that ocean wherewith God hath compassed the Earth is navigable on every side round about, and the settled or extraordinary blasts of wind, not always blowing from the same quarter, and sometimes from every quarter, do they not sufficiently signify that nature hath granted a passage from all nations unto all?
¶ 10 Leave a comment on paragraph 10 0 Grotius in effect anticipated the common heritage principle in contemporary international law, an idealistic and cosmopolitan principle which holds that certain resources of the world are considered shared resources for humankind, hence
¶ 11 Leave a comment on paragraph 11 0 should not be unilaterally exploited by individual states or their nationals, nor by corporations or other entities, but rather should be exploited under some sort of international arrangement or regime for the benefit of mankind as a whole.
¶ 12 Leave a comment on paragraph 12 0 The principle is usually applied to areas outside the territorial boundaries of nation states including the natural resources found there such as the seabed and ocean floor and the subsoil. Some environmental organisations have proposed the inclusion of essential global commons such as rain forests and genetic resources under the common heritage principle even though located within nation states. However, the idea of applying this principle to resources within the territorial boundaries of nation states has proved controversial.
2. Realism as Dominant Discourse within International Law and Politics
Sovereignty and National Identity
¶ 13 Leave a comment on paragraph 13 0 The current system of state sovereignty under international law originated in the 1648 Treaty of Westphalia which ended the long-standing religious wars in Europe and brought in an international system consisting of independent territorially-bounded states. The Treaty sought to ‘limit war by recognising the right of princes to decide which religion would be dominant within their state or principality’. This territorialised religion by establishing the principle of cuius regio eius religio whereby the ‘religion of the prince determined the religion of the state’. It can be argued that Westphalia not only established modern nation states, but also, as a corollary, the nation’s ideological offshoot nationalism and the notion of an ‘imagined’ national community through common religion and language, in particular vernacular language, as often the ‘national language of a community is preserved by its religious institutions’.
¶ 14 Leave a comment on paragraph 14 0 French national and linguistic identity, for example, is ‘generally held to have begun around 813 AD with the declaration at the Council of Tours’. The declaration allowed priests to preach sermons and homilies in the vernacular — rusticam romana linguam (rustic Romance language) or teudisca lingua (German) — instead of classical Latin which the common people no longer understand. Kumar attributed the growing sense of Englishness in England in part to William Tyndale’s 1538 translation of the Bible in the vernacular. Anderson confirms that the growth and spread of nationalism was abetted with the spread of vernacular literacy via the invention of the printing press and the decline of ‘old sacred languages’ such as Latin:
¶ 15 Leave a comment on paragraph 15 0 After 1640, with fewer and fewer books coming out in Latin, and more and more in vernacular languages, publishing was ceasing to be an international (sic) enterprise’. In a word the fall of Latin exemplified a larger process in which the sacred communities integrated by old, sacred languages were gradually fragmented, pluralized and territorialised.
¶ 16 Leave a comment on paragraph 16 0 Turner argues that the way national identity is moulded by religion is evidenced by religious traditions having a certain ‘depth and continuity’ that secular political systems lack. Religion is a very influential factor in many pro-independence movements; it is a source of ‘affective motivation’, a deep motivation often tapped into by political systems in building national identity, by way of having a common religious orientation within the state. As a collective and affective force, religion is similar to nationalism in that both address a basic human need to securing and established identity. Humans need to identify and connect with something—be it with a nation, group or religion. This perhaps explains why in a world dominated by secular states and other global actors and though Western social scientists do not usually ascribe religious belief to account for the behaviour of individuals, societies states, religion continues to survive and flourish. Stack argues that religion is important because it serves as a ‘fundamental marker of individual and group identity’, even as it caters towards the need for authenticity and belonging and as such resonates deeply in the individual’s most basic values and life choices.
Dividing Practices and Subjectification
¶ 17 Leave a comment on paragraph 17 0 The system of state sovereignty implies that each state has ‘control over its external relations with other [s]tates, as well as authority to regulate its affairs within the confines of its territory’. Foucault argues the reason the state remains a strong force is its use of an ‘individualizing and a totalizing form of power’, referring to the modes of objectification of the state’s citizens in our culture, which are, to name but two, the dividing practices and subjectification. The former is the more obvious and brusque exercise of power, while the latter is the more subtle, if unrecognisable method.
¶ 18 Leave a comment on paragraph 18 0 Foucault regards sovereign power as ‘prohibitive and censoring’, exercised primarily through the instrumentality of ‘law and law-like institutions’. As an expression of realism, sovereign power is also divisive in the way the power is exercised from within the state and in relation to other states. Among the examples of intra-state expressions of sovereign power are what Foucault calls the dividing practices. These are modes of manipulation using power (and discourse) to divide, even isolate, certain categories of people. Foucault used as examples the isolation of lepers in medieval Europe, or the ‘confinement of the poor, the insane and vagabonds in the great catch-all Hôpital Général in Paris in 1656’,which despite its name, was not primarily a hospital but a place of isolation for the city to get rid of its beggars and vagabonds. Taking from Foucault, any undesirable social category, such as refugees, migrants, terrorists (suspected or not) or persons with HIV may be barred from entry into a state or, if already within the state, are subjected to isolationist practices or ‘architecture’ in Foucault’s parlance, ‘organis[ing] individuals and space according to function and rank, e.g., enclosures and partitioning.’ To impose what Foucault calls disciplinary power, divisions and partitions — whether physical or psychological—are important, because ‘[d]iscipline is an art of rank’. The unit is ‘neither the territory (unit of domination), nor the place (unit of residence), but the rank: the place one occupies in a classification’, whereby ‘each is defined by the place it occupies in a series, and by the gap that separates it from the others’.Thus, using different methods of partition, e.g. through name-calling, ghettoization or deportation, the ‘subject is objectified by a process of division either within himself or from others’.
¶ 19 Leave a comment on paragraph 19 0 Disciplinary forces within the state result in a dominating form which both ‘constructs the subject and subjects him to subtle forms of control’. Stated another way, sovereign power, while initially imposed from the outside, becomes internalised into one’s personal behaviour and implicitly embedded into social practices such that individual slowly assents to the subtle regulations and expectations of the social order. Called bio-power by Foucault, the individual’s acquiescing to subtle regulations is the result of an ‘explosion of numerous and diverse techniques for achieving the subjugation of bodies and the control of populations’. Following on from Foucault, Jenny Edkins and Véronique Pin-Fat argued, somewhat controversially, that although ‘sovereign power remains globally dominant’ it cannot really be considered a form of power but ‘a relation of violence’, citing the current asylum policy of the United Kingdom which ‘justifies and ignores’ gross violations of human rights, ‘legitimises repressive laws’ and ‘denies people’s rights to struggle for change’.
¶ 20 Leave a comment on paragraph 20 0 Yet, to regard law purely in terms of subjugation is also inaccurate. Foucault looks at the institution of law beyond repression and subjugation. For instance, a legal system should not be thought merely as a ‘force wielded by the monarch to ensure compliance through the threat of violence’. The law also ‘co-ordinated the pre-existing relationships of power and reduced the potential for conflict between the structures that they formed’. Thus, ‘potential conflict[s] could be solved…[and] society would always be moving towards a state of order’. Foucault writes that if nation-states were ‘able to gain acceptance, this was because they presented themselves as the agencies of regulation, arbitration, and demarcation, as a way of introducing order into the midst of these [prior] powers’. In other words, law serves as a relational force that directs and co-ordinates the various sources of power within a nation-state. Law, thus, has both repressive and productive functions, and despite law being used for oppressive purposes, society cannot function without it.
Sovereignty in International Law
¶ 21 Leave a comment on paragraph 21 0 State sovereignty and equality are confirmed in Article 2 of the Charter of the United Nations, particularly under the principles of non-intervention in the domestic affairs under Article 2(7), and restraint in the threat or use of force against the territorial integrity or political independence of other states under Article 2(4). The principle of non-intervention into the internal affairs of another state has been considered the main governing rule of state relations and is at present the most significant means to cope with the ‘anarchy’ that ‘lies at the heart of international politics’, which will discussed in detail in the later part of this paper.
¶ 22 Leave a comment on paragraph 22 0 The state sovereignty and equality principle is dominated by two related yet divergent schools of thought: realism and idealism. Both are anchored on human reason and the capacity to formulate ultimate choices in the international legal and political arena. Realism concerns itself with the world as ‘it actually is’, instead of how one wants it to be. For realists, states are the main actors in the world stage, which are ‘deeply committed to pursuing power at each other’s expense’. The states’ interest and aims are, for realists, defined in terms of power, in particular the power to dominate other states or, at least, to ensure survival. Idealists, on the other hand, see no essential incompatibility between nationalism and internationalism. It is possible to construct, for instance, a ‘division of labour between nations’ wherein each nation will be tasked to perform its special contribution for the well-being of the international community. For idealists, if all nations were to ‘act in this spirit, international harmony would prevail’. Instead of defining power in terms of self interest as realists do, idealists emphasise the power of reason to ‘overcome prejudice’ and ‘eliminate crude power from international relations’. This is not to say idealists are averse to power as such. Rather, they conceive of power in terms of ‘power with’ suggesting mutualistic cooperative relations and not ‘power over’ other states.
¶ 23 Leave a comment on paragraph 23 0 An obvious strength of realism is its empirically valid observation that states are still the ‘main actors on the world stage’ and competitive power politics remains ‘alive and well in the world around us’. The contest for power at the international level, for Morgenthau, is the result of animus dominandi, the main driving force of humans to dominate their fellow humans, a concept likely influenced by Nietzsche’s ‘will to power’. While classical realists such as Hobbes, Niebuhr and Morgenthau locate the desire for power as coming from human nature and egoism, the neorealists, also known as structural realists, such as Waltz, attribute power politics to international anarchy. Waltz argued that ‘wars occur because there is nothing to prevent them’.
¶ 24 Leave a comment on paragraph 24 0 The anarchy referred to by Waltz is the absence of governing structure at the international level beyond the nation states. The United Nations, which is the largest organisation of nations on the planet is neither a world executive nor parliament. While the U.N. Security Council has the power under Chapter VII, Article 39 to set aside the principle of non-intervention and use ‘force to override the sovereignty of a targeted state’ on the grounds of grave threats to international peace, the ultimate decision of what threatens international peace is left to the subjective interpretation of the U.N. Security Council Members. In particular during the cold war, the perceived national interests of the five permanent members of the Security Council namely, the United States, the United Kingdom, China, France and the Soviet Union [now Russia] determined whether Chapter VII would be invoked or whether Article 2(7) would prevail.
¶ 25 Leave a comment on paragraph 25 0 Notably, each of the five permanent members of the Security Council has veto power under Article 27(3) over any substantive resolution of the Council. This means the adoption of any substantive (as determined by the permanent members) resolution by the Security Council on any matter involving breach or threat to international peace may be blocked by any one of the permanent members. As abstention is not considered veto, draft resolutions on substantial matters may be passed in the absence of a vote of a permanent member. The use of the veto not only ‘paralyzed the Security Council’s capacity to use Chapter VII’ but the determination of what constitutes existence of a threat to, or breach of the peace or an act of aggression became ideological constructions ‘motivated by the fulfilment of political requirements or considerations’. Arguably, the veto power is a major cause for international inaction on crimes against humanity and breach of international peace. This de facto control over the Security Council by its five members has been seen as the most undemocratic character of the United Nations.
¶ 26 Leave a comment on paragraph 26 0 Realism recognises no other alternative to coexistence in an anarchical world of individual sovereign nations, hence accepts the modern state system as a necessity, while idealists tend to define goals in ideal, often visionary forms with international strife regarded as ‘unnecessary and reprehensible products of outmoded forms of human organization, both in the internal structuring of states and in their international practices’. This is not to say these are the only conceptions about world polity. Beyond utopia and reality are critical theories including cosmopolitan democracy, critical international theory, feminist approaches, or postmodernism, which offer emancipatory views, and call for the ‘reconceptualization of a world centred upon the fixity of the nation state and power relations’. The discussion does not imply a straightforward dichotomy, as the boundary between the two discourses are porous and seldom neat. For instance, even realists recognize that there is a well-developed and widely accepted body of idealist or liberal norms in international politics and many of these are codified in international law.
¶ 27 Leave a comment on paragraph 27 0 While realists overstate the incompatibility between the pursuit of power and ideals, the two are not exclusive, and they may simultaneously exist within one state. For example, John Mearsheimer pointed to the United States’ idealism in fighting ‘Nazi Germany in World War II’ and realism in opposing the ‘Soviet Union during the Cold War’. The approach to the Soviet Union founded on realpolitik did not prevent the establishment of an international tribunal at Nuremberg to punish individual Nazis for the barbarities they had authorized against German citizens under a new category of crime called crimes against humanity which were different from the war crimes the Axis partners had inflicted upon Allied soldiers and prisoners of war. As Robertson says of Nuremberg and crimes against humanity:
¶ 28 Leave a comment on paragraph 28 0 The logic of the crime against humanity, first defined in Article 6(c) of the Nuremberg Charter, was that future state agents who authorized torture or genocide against their own populations were criminally responsible, in international law, and might be punished by any court capable of catching them. For the first time, it could be said that individuals had a ‘right’ to be treated with a minimum of civility by their own governments, which ‘right’ all other governments had a correlative duty to uphold by trying the torturers who fell into their hands, or else by setting up international courts to punish them.
¶ 29 Leave a comment on paragraph 29 0 Nuremberg’s legacy goes beyond the contribution of idealism to world affairs, but the recognition in international law that the exercise of power over by an individual or state resulting to coercion, domination and oppression would have no place in the family of nations, and that it is possible through idealism’s normative principles to reconstruct and re-conceptualise power from state-based conceptions (with its corollary principle of non-intervention into another state’s domestic affairs) into cosmopolitan conceptions of power based on international justice for humanity.
3. Baha’i Cosmopolitan Idealism
¶ 30 Leave a comment on paragraph 30 0 Baha’i cosmopolitanism is informed by its founder Baha’u’llah’s progressive conception of religion, on his claim as the figure ‘predicted in all the sacred Scriptures of past ages’, and on his foundational principle of unity or the oneness of humanity. Baha’i theology begins with the belief that the divine Being is unknowable and ‘beyond every human attribute’, putting it within the purview of Durkheim’s view of religion as something concerned with that ‘order of things that goes beyond our understanding…the unknowable or the incomprehensible’. Baha’u’llah maintains, the ‘door of the knowledge of the Ancient of Days (God)’ is ‘closed in the face of all beings’, and no man understands, much less fathom the reality of the godhead. Despite God’s unknowability, God sends divine teachers appearing on earth in human form to educate humanity on the mysteries of the divine being:
¶ 31 Leave a comment on paragraph 31 0 the Source of infinite grace … hath caused those luminous Gems of Holiness to appear out of the realm of the spirit, in the noble form of the human temple, and be made manifest unto all men, that they may impart unto the world the mysteries of the unchangeable Being, and tell of the subtleties of His imperishable Essence.
¶ 32 Leave a comment on paragraph 32 0 These divine messengers, called by Baha’u’llah, the Manifestations of God, bring with them world religions that give humanity the capacity to carry forward an ever-advancing civilization. Whereas religion is often dismissed as a ‘small and outdated aspect of culture’, or part of one’s personal preferences as the New York Times puts it
¶ 33 Leave a comment on paragraph 33 0 Vietnamese food or French cuisine, Jesus or Nostradamus, permed or straight, life or death: they are all the same – [w]hatever you choose does not matter, only your freedom in choosing does,
¶ 34 Leave a comment on paragraph 34 0 to Baha’u’llah religion is responsible for the ‘progress of the world and the advancement of its peoples’, and the ‘animating force through which the arts and wonders of the world are made manifest’.
¶ 35 Leave a comment on paragraph 35 0 Religion has not always brought progress or goodness, as history attests. For every act of solidarity and promotion of order, education, peacekeeping and humanitarian relief efforts done in the name of religion, counter-evidence points to intolerance, fanaticism, violence, even outright terrorism. Religion, in other words, has become an ambiguous if powerful force for informing and inspiring people to act and think in particular ways whether good or bad. Nevertheless, religion also acts as an important cultural system motivating people to establish a ‘general order of existence’, that ensures social cohesion. For Baha’u’llah religion has the capacity to become an ‘instrument for the establishment of order in the world, and of tranquility amongst its peoples’. It is a ‘radiant light’ and an ‘impregnable stronghold for the protection and welfare of the peoples of the world’, for the ‘fear of God impelleth man to hold fast to that which is good, and shun all evil’. Muhammad Yunnus’ work in microfinancing women’s projects in Bangladesh, Vandana Shiva’s environmental activism and Thich Nhat Hanh’s engaged peacemaking, are informed by their respective Muslim, Hindu and Buddhist faiths.
¶ 36 Leave a comment on paragraph 36 0 In spite the varied impacts religion has on the lives of peoples, and despite modern trends towards secularization, religion continues to play a significant role in culture and identity. A study by the American Academy of Religion notes how globally membership in the world’s four largest religions i.e., Christianity, Islam, Buddhism and Hinduism ‘increased over the past century, from 67 per cent in 1900 to 73 per cent in 2005’. No amount of persecution, intolerance or abuse done in the name of religion has diminished religion’s staying power; if anything, its adherents is ‘predicted to reach 80 per cent by 2050’. Moreover, the freedom to have and to exercise of one’s religion or belief as well as the freedom to change one’s religion or belief are well-entrenched rights under international law.
¶ 37 Leave a comment on paragraph 37 0 Among Baha’u’llah’s well-quoted statements are ‘[t]he earth is but one country, and mankind its citizens’, and ‘[y]e are the fruits of one tree, and the leaves of one branch.’ The use of ‘mankind’ and ‘all men’ reflects a historical and stylistic preference for male pronouns, but in fact includes women and persons of color, taking into account Baha’u’llah’s overall message of unity and annulment of past laws and practices which divided humanity through lines of gender or race. Baha’u’llah’s use in the late 1800s of the term mankind or humanity, thus, contrasts with how the term was understood during that time. For instance, ‘humanity’s political denotation likely excluded women who were only allowed to vote in early 1900s. Similarly, when Jefferson in 1806 used the term ‘human’ in the phrase ‘violations of human rights’, he drew ‘no implications for African-American slaves’ in the United States for the term human rights by Jefferson’s definition ‘did not enable Africans—much less African-Americans—to act on their own behalf.
¶ 38 Leave a comment on paragraph 38 0 The principle of the unity of humanity is, of course, not a new principle whether from secular or religious viewpoint. Ancient Stoic philosophers argued for humankind’s membership within one world community under one universal law, while historian Arnold Toynbee believed the unification of humanity—with all cultures ‘brewed together in a single crucible’—will be founded on the ‘bedrock of religion’. Abrahamic religions upheld cosmopolitan views anchored on that fact that humanity is a single creation of God. St. Paul declares that ‘God…[who] made the world and all things therein’ also ‘made of one blood all nations of men for to dwell on all the face of the earth’. The Qur’an maintains humanity’s cosmopolitan origins, which nonetheless was not maintained: ‘Once all men were but a single community; then they disagreed’.
¶ 39 Leave a comment on paragraph 39 0 From an idealist perspective, the Baha’i principle of unity calls for a paradigm shift for humanity to expand its loyalty beyond the borders of their respective countries towards humanity: ‘[i]t is not for him to pride himself who loveth his own country, but rather for him who loveth the whole world’. This supra-national loyalty need not be understood as a rejection of one’s country for another important Baha’i principle is the ‘unqualified loyalty and obedience’ to one’s national government. Nonetheless, unqualified loyalty to the ‘considered judgment’ of one’s national government may prove problematic when discriminatory national laws and policies run counter to Baha’i cosmopolitan principles, for how would Baha’is respond when forced by their governments to obey xenophobic and unjust national laws against racial or ethnic classes? Additionally, questions may be asked how the oneness of mankind would come about, assuming it would be established. The Baha’i conception of a federated world unity is indeed something which the world has not yet seen, except perhaps, on a limited national or regional scale. Nations with federated states such as the United States and Australia, or the political and economic union of regional states such as the European Union are examples.
¶ 40 Leave a comment on paragraph 40 0 Shoghi Effendi, the head of the Baha’i Faith after Baha’u’llah’s son and successor Abdu’l-Baha passed away, states the principle is ‘no mere outburst of ignorant emotionalism or an expression of vague and pious hope’ and neither is its appeal to be ‘merely identified with a reawakening of the spirit of brotherhood and good-will among men’. For Shoghi Effendi, the principle implies a deep change in current structure of world society which
¶ 41 Leave a comment on paragraph 41 0 calls for no less than the reconstruction and the demilitarization of the whole civilized world—a world organically unified in all the essential aspects of its life, its political machinery, its spiritual aspiration, its trade and finance, its script and language, and yet infinite in the diversity of the national characteristics of its federated units.
¶ 42 Leave a comment on paragraph 42 0 As earlier said, a worldwide—universal—regime of federated states with a democratically elected world government as envisioned by Baha’i cosmopolitanism is something the world has not yet experienced. While the historical experience of a world state with world government may be lacking, proposals for it are not. Dante argued only a universal empire will bring universal peace, and that peace is not possible without a single authority to settle disputes among those under it. Norman Cousins posited there is no alternative to a world government, as only a world government could save humanity from total nuclear destruction. In extremis though his argument may be as we do not have a genuine world government, yet the world has not come to an end, Cousins’ ideas nonetheless finds support in Pope John XXIII, speaking through his encyclical Pacem in Terris, who argued for the need of a world government to address the global nuclear problem. As this era ‘presents us with problems which are world-wide in their dimensions’, not only would humanity’s ‘common interests make it imperative that at long last a world-wide community of nations be established’, but a world government need to be established which are in a position to operate in an effective manner on a world-wide basis. The encyclical points that global problems cannot be solved except through world governance, in the form of a
¶ 43 Leave a comment on paragraph 43 0 public authority with power, organization and means co-extensive with these problems, and with a world-wide sphere of activity. Consequently the moral order itself demands the establishment of some such general form of public authority.
¶ 45 Leave a comment on paragraph 45 0 [T]his general authority equipped with world-wide power and adequate means for achieving the universal common good cannot be imposed by force. It must be set up with the consent of all nations.
¶ 46 Leave a comment on paragraph 46 0 Persuasive the arguments may be, it nonetheless remains to be seen how this structure would actually come about in practice and what safeguards and institutions must be established to ensure the structure will not bear the same brunt of weaknesses already inherent in the structures of both the League of Nations and the United Nations. Will the detailed workings of this world government be modeled from an existing country or would it assume a completely new structure? Assuming the world will become one country, from whose conceptions of international nationhood will the concept be predicated upon, and who (or what institution or institutions) will bring this about, and when and what timelines will be needed to achieve the aim. These and other questions remain, and must indeed be asked if the Baha’i conception of cosmopolitanism is to be considered as an idealist alternative to current realist conceptions in international affairs.
¶ 47 Leave a comment on paragraph 47 0 Idealistic, cosmopolitan and social reformist lines of thinking have been considered before in various forms. Erasmus in ‘Complaint for Peace’ (Querela Pacis) argued for Church authorities to settle disputes among Christian rulers through arbitration, and for nations to avoid war at all costs: ‘one can hardly imagine an unfavourable peace which would not be preferable to the most favourable war’. In 1623, a century after Erasmus, Cruce published his ‘The New Cyneas or a Discourse on the State’ (Le Nouveau Cynee ou Discours d’Estat) proposing a federation of rulers not only from European nations but also India, Persia, China, Africa as well as the heads of Turks, Jew and Moscovy (Russia). The federation consists of a permanent Council of Ambassadors with powers to settle disputes through arbitration, or else use force against a recalcitrant member. Cruce points to the ‘connection that is and must be between men’, and asserts that ‘hostilities are only political’, saying: ‘[w]hy should I a Frenchman, wish harm to an Englishman, a Spaniard, or a Hindoo? I cannot wish it when I consider that they are men like me, that I am subject like them to error and sin and that all nations are bound together by a natural and consequently indestructible tie’. Cruce’s cosmopolitanism, albeit of a limited type, thus presages the world federation envisioned by Baha’u’llah based on ‘consciousness of world citizenship’, ‘emergence of a world community’ and the ‘founding of a world civilization and culture’.
¶ 48 Leave a comment on paragraph 48 0 In recent years, one may discern a weakening of state prerogatives brought about by transnationalising forces in areas as diverse as human rights, global economy, migration and environmental issues. While statist sovereignty may have the power to traditionally organise unquestioned political and social reality, such has been put to test through various transnationalising events and the porousity through which goods and people increasingly pass through international borders. For Soguk and Whitehall the history of both forced and voluntary migration questions the tranquillity on which the boundaries of the nation state has been unquestionably accepted: ‘[i]n the transversality of space, frontiers are turned into crossings, and rivers into bridges.’ A more detailed discussion in the next section on migration (including climate-change induced migration) and human rights will provide a fuller perspective of the realist-idealist conceptions of international relations.
4. Migration and Human Rights
¶ 49 Leave a comment on paragraph 49 0 Social theorists have sought to explain why those who lack economic or social power consent to hierarchies and categories that ‘privilege some while exploiting others’. Theories of ‘ideology, hegemony and discourse’ have been used to illuminate intersections between ‘social production of knowledge and perpetuation of inequitable power relations’. This section will focus on two prominent areas of international law, namely human rights and migration to present a Baha’i critique on the continued construction of the primacy of the sovereign state within international law discourse. To aid in my analysis, I will use critical and post-structuralist discourse theories of, among others, Marx, Gramci, Foucault and Karlberg to explain tension, contradiction and power distribution within the discourses of realism and idealism.
¶ 50 Leave a comment on paragraph 50 0 Marxist theory posits a vision of society ruled by the ideology of the dominant economic class mainly to protect their interests. While the theory has been criticised as reductionist for an undue emphasis on economism, historically we find examples in international law how dominant, economically powerful nations used Westphalian conceptions of state primacy to protect their interests. The United States Supreme Court in the 1892 case of Nishimuru Ekiu stated that:
¶ 51 Leave a comment on paragraph 51 0 …it is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.
¶ 52 Leave a comment on paragraph 52 0 On appeal from Canada, the Privy Council similarly argued in 1906 that ‘by the law of nations the supreme power in every State has the right to make laws for the exclusion…of aliens’. Both decisions have been cited as ‘authority around the world’ and have been a ‘powerful influence on the modern understanding of the role of international law in regulating human migration’. In both international and domestic law the justification given on the right of a state to exclude aliens is often couched in legal discourse as an attribute ‘inherent in [state] sovereignty’ and ‘essential to self preservation’. In the absence of actual or imminent threat, under normal peaceful conditions there does not seem any justification to invoke self preservation. The discourse on self preservation is, thus, dubious. Also, invoking the state’s inherent power to exclude aliens in the absence of valid proof of, say, great health or security risk, makes little sense beyond saying the discourse is nothing but an attempt at demonstrating bravado or brute force.
¶ 53 Leave a comment on paragraph 53 0 In fact, the answer is closer to Marx’s vision of a society ruled by the interests of the dominant powers that be. Nafziger posits the unarticulated bases of the Court’s exclusionary discourses of inherent state sovereignty and self preservation is nothing but the Court’s ‘acceptance of nativism, racial prejudice, and ideological repugnance’. Three of the landmark cases decided by the United States Supreme Court from 1889–1893, were in response to a desire to prevent huge waves of Asian migration. Of these, two ‘upheld legislation designed to exclude or expel what were explicitly feared to be nonassimilable yellow hordes’, while the third ‘upheld the exclusion of a Japanese, ostensibly on the basis of her indigency’.
¶ 54 Leave a comment on paragraph 54 0 Migrants, for the most part, submit to the coercive authority of state sovereignty and protection doctrines given the imprimatur of the courts, and also through fear of violence exercised by the state against those who refuse to accept. For non-migrants, the discriminatory treatment against migrants is accepted or ‘uncritically absorbed’ even consented, following Gramci’s notion of hegemonic power convincing individuals and societies to overlook iniquitous structures (values and norms) and see these as part of ‘common sense’ which society ‘inherited from the past’ through its laws. The perpetuation of hegemony is also facilitated through social institutions such as the media, church, family, as well as through schools through the action of everyday encounters. Faith in these institutions and the generally uncritical and accepting attitudes towards them lull us towards what Gramci calls a state of ‘moral and political passivity’.
¶ 55 Leave a comment on paragraph 55 0 The right of entry, passage and even residency in foreign lands was well-accepted during classical times, and early international law publicists supported the cosmopolitan notion of freedom to travel to foreign lands. Grotius stated that among those things which belong to ‘[m]en in [c]ommon’ were the ‘right to temporary sojourn’, a ‘permanent residence for refugees expelled from their homes’, the ‘right of foreigners to be free of discrimination on the basis of nationality, the right of foreigners to possess deserted and unproductive soil, and the right of foreigners to the necessities of life, such as food, clothing, and medicines’.
¶ 56 Leave a comment on paragraph 56 0 The main Baha’i critique of the current international migration as well as human rights system is the ‘continued primacy of the sovereign states’ in international affairs which, in the context of today’s transnationalised if globalised arrangements has become anachronistic. Increasing weather severities brought about by global warming, for example, is no respecter of borders when it comes to migrants forced out of their homes due to environmental causes. Yet, no binding international law currently exists expressly protecting environmental migrants, and the decision whether or not to admit them remains exclusively with destinations states. The Intergovernmental Panel on Climate Change, the scientific and intergovernmental agency tasked by the United Nations to understand the long-term effects of climate change, projects that the ‘greatest single impact’ of environmental change will be on ‘human migration and displacement’. Yet, to reiterate, unlike refugees and refugee-like peoples, environmental migrants are ‘not covered by an international legal framework’. Under international law, environmental migrants are not a ‘formal category of people in need of special protection’, and there is no ‘coordinated legal and administrative system’ to relocate them in a ‘planned and orderly manner’. There is little international support for a new normative category, and the difficulty of inducing policymakers to act cannot be underestimated.
¶ 57 Leave a comment on paragraph 57 0 Indeed, current international legal norms have addressed the question of migration in a ‘piecemeal and haphazard manner’ with states continuing to have almost absolute discretion who to allow entry onto their borders. Following this line of realist reasoning, international migrants are conceptualised based on the following discursive categories: as units of labour to be regulated, as a security threat to be controlled, or as a human rights case to be resolved. From an economic viewpoint, labour migration is seen as benefiting the individual migrant who would otherwise be unemployed in his or her home state. Nonetheless, migrants are also seen as competing for jobs within the tight labour market of receiving states; otherwise, migrants are relegated to work which are often dirty, dangerous or demeaning, that is, jobs which natives do not want. As economic units in the host country, labour migrants are seen as cogs in the state economic machine, as approach which fail to take in to account their individual human experiences. A securitised approach to migration which regards migrants as potential criminals find migrants feared, misunderstood and abused within destination states by their employers and the public. There has been an increase in crime control, state border protection and talk of wall building in response to the conceptualisation of migrants criminals and security threats.
¶ 58 Leave a comment on paragraph 58 0 As earlier said, migration questions the tranquillity on which the boundaries of the nation state has been unquestionably accepted. The encounter between migrants who are seen as threats by the host residents nonetheless challenges and destabilises the security and coherence of the sovereign project. Traditional concepts of community and nationhood which are ‘tied to the notions of totality, boundedness and [uniform] identity’ and which are in turn all ‘captured in the notion of sovereignty’, are at once being destabilised and undermined.
¶ 59 Leave a comment on paragraph 59 0 From a Baha’i viewpoint, the statist construction of international law presents a ‘problematic position in relation to human rights’ which are to ‘secure respect for, and the realisation and fulfilment of internationally agreed human rights standards’. Schwarz mentions ‘state sovereignty’ as a ‘possible limitation to international efforts in protecting human rights’. This is so because while states provide the ‘structure within which human rights standards are…generated, monitored and accounted for’, only states have, under a realist conception of international law, the
¶ 60 Leave a comment on paragraph 60 0 prerogative to decide whether or not they will agree with a particular human rights text, to decide whether they will vote for it, to decide whether they will need to protect themselves from future criticism by attaching reservations or by persistently objecting to it, and to carry the final responsibility for ensuring their respect for it.
¶ 61 Leave a comment on paragraph 61 0 One advantage of this model is that ‘responsibility’, at least in free and democratic states, is ‘assigned on the basis of legitimacy stemming from being elected to positions of power’. The downside is the interpretation of what human rights are subject to political and cultural biases, and ultimately to whimsical conception and application of power within each state domain. A case in mind is Burma’s devastation on 2 May 2008 in the aftermath of Cyclone Nargis, damaging ‘37 townships’ mostly in the southern Ayeyarwady Delta region and killing ‘84,500 people’ with ‘53,800 [people] missing’, and overall affecting, per United Nations estimate, ‘as many as 2.4 million people’. Despite pressure from the United Nations, various governments and NGO’s, the Burmese government invoked its sovereign right to refuse international intervention. In the days after the cyclone, ‘[e]mergency help has been held up by Burma’s rulers’, who ‘accepted the aid’ but refused to allow ‘foreign aid workers helping the many thousands left destitute and in danger of disease’. An independent study conducted by Johns Hopkins University found the military regime ‘deliberately blocked’ international aid and the army ‘obstructed private cyclone relief efforts’. Beyrer said the regime’s response to the disaster ‘violated humanitarian relief norms’ and the ‘systematic abuses’ may amount to ‘crimes against humanity under international law’.
Reconceptualising Realism and Idealism. Through Discourse Analysis
¶ 62 Leave a comment on paragraph 62 0 The premise of discourse theory is the concepts we hold determine our perceptions which in turn influence our actions and social interactions. The things that ‘make up the social world’ including our ‘very identities’ appear ‘out of discourse’. Simply, ‘our talk, and what we are’ are ‘one and the same’. Discourse analysis is not only a tool for observing social reality, or ascertaining social constructions, as such, it also takes into account societal ‘contexts’ as well as ‘broader discourses’ and the ‘accumulated bodies of texts’ within which discourses are ‘embedded’. Our notion of ‘nation’, whether we conceive of it in terms of power as domination, or power as force for cooperation, will sooner or later be reflected in how we talk or frame our language and act. Further, discourse is not static as social constructions change over time with varied set of circumstances. ‘Globalization’, for instance, meant nothing 60 years ago. Today, globalization discourse
¶ 63 Leave a comment on paragraph 63 0 draws from and influences other discourses – such as free trade discourse and liberalism, discourse around new technology…even health and terrorism….[T]he discourse of globalization makes certain practices possible or inevitable – such as business operations of multinational companies, restrictions on refugees, or trade patterns between countries – and how it empowers or disempowers different identities’.
¶ 64 Leave a comment on paragraph 64 0 As earlier said, the interest of states, as perceived by realists are framed in terms of the discourse of power. That is, states within current international system commit to pursue power one another’s expense. As international law is based on the principles of state sovereignty and territorial integrity, states ‘continue to have near absolute discretion over which non-citizens they choose to allow onto their territory’. The primacy of the sovereign states can also be seen in their sole power, under international law, to determine which ‘international human rights standard’ to establish within their domestic jurisdiction, to ‘decide whether or not they agree with a particular human rights text’ and ‘decide whether or not they will vote for it’. If power is mainly constructed along sovereign state lines, what will prevent states from turning against their own citizens, as with the genocides in Rwanda and Cambodia, or migrant non-citizens.
¶ 65 Leave a comment on paragraph 65 0 If ultimate power in international law, as realists conceptualise it, reman posited within state lines, then wars will have no end, there being nothing or no one to prevent war, and international peace continually undermined. The current statism and anarchy in international affairs are forms of ‘tribalism dividing mankind into “them versus us”… thereby creating a culture of conflict that is the necessary psycho-social precondition for war’. For cosmopolitanism, including Baha’i cosmopolitanism, humankind is the natural unit. Thus, realist notions structuring the world community around a permanently separated state-based units are being challenged as problematic
¶ 66 Leave a comment on paragraph 66 0 [s]ince the nation state divides the human race, and oftentimes constructs aggressive and divisive borders. [Therefore], it cannot be the supreme or final expression of human relationships on the planet, as this would constitute a denial of [humanity’s] integral oneness.
¶ 67 Leave a comment on paragraph 67 0 In other words, the nation-state is questionable even from a teleological vantage in that its raison d’être is to divide rather than unite the human race whose reality, at least from Baha’i reckoning, is one and whose ultimate aim is to reside in one human polity.
¶ 68 Leave a comment on paragraph 68 0 To effect ‘social change’ requires transforming ‘habits of thought’ for our minds are ‘involved in constructing the world we find ourselves in’. With advances in transportation, communication and high technology virtually reducing the world into one borderless village, ‘[h]ow can humanity’, asks Mooten, ‘find its natural home in a unit that has given rise to xenophobia, genocide and nationalism?’ A good start is, perhaps, to reconceptualise our world views from state-based realism with its construction of power in terms of domination or contest towards idealistic if cosmopolitan conceptions situating the notion (and use) of power within cooperative and collaborative frames that regard the world as an interdependent collective home.
¶ 69 Leave a comment on paragraph 69 0 ‘Laws and institutions’ according to abolitionist social reformer Beecher, are ‘like clocks’ in that they must be ‘wound up, and set to true time’. Deep-seated changes within societal thinking are not new. The abolition of ‘slavery’ and ‘abandonment of Chinese foot binding’ practices are offshoots of ‘changed public perceptions about notions of human dignity and honor’. The ‘hope of harmony’ in the contemporary world, according to Sen, lies to a ‘great extent’ in a ‘clearer understanding of the pluralities of human identity’, for it is indeed possible to identify oneself as member of the nation state, while simultaneously conscious of a wider membership and loyalty to the human race.
¶ 70 Leave a comment on paragraph 70 0 Using discourse analysis, this paper sought to put aside prevailing realist and idealist preconceptions within international law. In doing so, it wanted to disclose the naturalised categories created in the field, among them the predominance of statist and state-centered discourses in international affairs, and interrogate its bases and relevance in an increasingly inter-connected world. As Foucault pointed out, while preconceptions must ‘not be rejected definitely’, the ‘tranquility with which they are accepted must be disturbed’. This is so as these preconceptions do not ‘come about by themselves’, but are ‘always the result of a construction of rules’ of which ‘must be known’ and the ‘justifications of which must be scrutinised’.
¶ 71 Leave a comment on paragraph 71 0 This paper also looked into the role of religion in contributing cosmopolitan lines of thinking into the founding of international law. Re-opening channels of dialogue between international law and religion, will perhaps lead to alternative models of engagement for humanity beyond the current system of sovereign states having to dominate the international system. With human rights, migration and environmental issues becoming globalised, our notions of who we are, in particular our loyalties and conceptions—and use—of power, will need to expand beyond narrow state-based perspectives towards an interdependent globalised society if we are to survive as a species.
¶ 72 Leave a comment on paragraph 72 0  Mark W Janis, ‘Religion and the Literature of International Law’ in Mark W Janis and Carolyn Maree Evans (eds) Religion and International Law (Martinus Nijhoff Publishers, 1999) 123.
¶ 73 Leave a comment on paragraph 73 0  Mary M Keys, ‘Religion, Empire, and Law among Nations in the City of God: From the Salamanca School to Augustine, and Back Again’ in Martti Koskenniemi, Mónica García-Salmones Rovira and Paolo Amorosa (eds) International Law and Religion: Historical and Contemporary Perspectives (Oxford University Press, 2017) 82.
¶ 76 Leave a comment on paragraph 76 0  Vivien Burr, Introduction to Social Constructionism (Routledge, 1995) 3-4. For an in-depth and systematic treatise on the social construction of reality and knowledge, see Peter L. Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Penguin Books, 1991).
¶ 83 Leave a comment on paragraph 83 0  Robert L Bledsoe and Boleslaw A Boczek, The International Law Dictionary (ABC-Clio,Inc.,1987). International law is traditionally defined as the law governing relations between States. Although states are still the main actors of international law, individuals are increasingly recognized and are conferred rights and imposed duties. Thus today the rules of international law include individuals, multi-national corporations, international non-governmental organizations, and other non-State entities. See Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (Longman Group UK Limited, 9th ed, 1992). Article 38(1) of the Statute of the International Court of Justice (ICJ) enumerates what are generally accepted as the sources of international law: international treaties, international custom (as evidence of a general practice accepted as law), the general principles of law recognized by civilized nations as well as subsidiary sources such as judicial decisions and works of legal scholars.
¶ 84 Leave a comment on paragraph 84 0  While cosmopolitan thinking began before the Stoics, it was the Stoics who refined the concept by arguing against the limitedness of the city state (polis), and for the earth (or universe as kosmopolis) as the common home of humankind. For instance when Cynic Diogenes of Sinope (412 B.C) was asked where he came from, he replied: ‘I am a citizen of the world (kosmopolitês)’. See Diogenes Laertius, Lives of Eminent Philosophers (R.D. Hicks, ed., Harvard University Press. 1972). Cosmopolitanism rests on three main principles. 1) That it is the individual, and not the state, which is the true basis of political communities; 2) that each human being has equal moral worth; and, 3) it is vital to develop principles and rules which can bridge differences. See David Held, ‘From Executive to Cosmopolitan Multilateralism’ in David Held and Mathias Koenig-Archibugi, (eds) Taming Globalization: Frontiers of Governance (Cambridge: Polity Press, 2003) 168.
¶ 85 Leave a comment on paragraph 85 0  Robert Fine and Robin Cohen, ‘Four Cosmopolitanism Moments’ in Steven Vertovec and Robin Cohen (eds) Conceiving Cosmopolitanism: Theory, Context and Practice (Oxford University Press, 2002) 138. Zeno imagined that in this ‘process of enlargement, the state itself would disappear, to be replaced by pure reason’.Ibid.
¶ 86 Leave a comment on paragraph 86 0  Ibid. at 139. The pervasiveness of the association of maleness with rationality has, of course, been questioned. According to Lloyd, the traditional association of masculinity with a ‘clear, determinate mode of thought’ while ‘femaleness with the vague and indeterminate’ is problematic, as such a categorisation has been ‘formed within structures of dominance – of superiority and inferiority’. Genevieve Lloyd, The Man of Reason (University of Minnesota Press, 1984) ix.
¶ 90 Leave a comment on paragraph 90 0  Spanish jurist and theologian Francisco de Vitoria (1483-1546) and Italian jurist Alberico Gentili (1552-1608), are also mentioned among the founders of modern international law, although some scholars argue that international law as a separate discipline did not truly develop until much later. See Anthony Pagden, Vitoria: Political Writings (Cambridge University Press, 1991) xvi. Vitoria argued, contrary to prevailing opinion of the time, that international law was founded on the law of nature, and its protection includes non-Europeans, among them the American Indians, with their own civilizations and nations; therefore, war against them was only possible on just grounds. As theologian, Vitoria believes that opposition of the spread of Christianity in the new world constitutes just causes for war. Gentili, on the other hand, published “De Jure Belli” in 1598, which contains a comprehensive discussion on international law, the law of war and the law of treaties. His secular approach to international law greatly influenced Grotius.
¶ 98 Leave a comment on paragraph 98 0  Edwin Egede, ‘Common Heritage of Mankind’ in Anthony Carty (ed), Oxford Bibliographies: International Law (Oxford University Press, 2014). Immanuel Kant also argued that the mutually beneficial ‘use of the right to the earth’s surface which belongs to the human race in common’ would ‘finally bring the human race ever closer to a cosmopolitan constitution’. Immanuel Kant, ‘Toward Perpetual Peace’ in Gregor MJ (trans.) Practical Philosophy – Cambridge Edition of the Works of Immanuel Kant (Cambridge University Press, 1999) 329.
¶ 102 Leave a comment on paragraph 102 0  Brian Opeskin, ‘The Influence of International Law on the International Movement of Persons’ (Human Development Reports, Research Paper, United Nations Development Programme, 2009) 6.
¶ 109 Leave a comment on paragraph 109 0  Ibid. See also Jean-Benoît Nadeau and Julie Barlow, The Story of French (Alfred A. Knopf 2006) 25. The identity of the local churches might of course take different forms to that decreed by the ruling classes.
¶ 115 Leave a comment on paragraph 115 0  Patrick James, ‘Religion, Identity and Global Governance: Setting the Agenda’ in Patrick James (ed), Religion, Identity and Global Governance: Ideas, Evidence and Practice (University of Toronto Press, 2011) 5.
¶ 116 Leave a comment on paragraph 116 0  Rieffer, above n. 43 at 218. Nationalism is that ‘animating spirit of a community of people’ with a ‘common heritage’ and ‘aspiration to be politically self-determining’. Ibid at 225.
¶ 118 Leave a comment on paragraph 118 0  John Stack Jr, ‘Religious Challenge to International Relations Theory’ in Patrick James (ed), Religion, Identity and Global Governance: Ideas, Evidence and Practice (University of Toronto Press, 2011) 28.
¶ 121 Leave a comment on paragraph 121 0  Michel Foucault, ‘The Subject and Power’ in Hubert L. Dreyfus, Paul Rabinow (eds), Michel Foucault: Beyond Structuralism and Hermeneutics (University of Chicago Press, 1982) 213.
¶ 122 Leave a comment on paragraph 122 0  Mona Lilja and Stellan Vinthagen, ‘Sovereign Power, Disciplinary Power and Biopower: Resisting what Power with what Resistance?’ (2014) 7(1) Journal of Political Power 110. Drawing in part from Foucault, Jenny Edkins and Véronique Pin-Fat argue, somewhat controversially, that although ‘sovereign power remains globally dominant’ it cannot really be considered a form of power but ‘a relation of violence’, citing the current asylum policy of the United Kingdom which ‘justifies and ignores’ gross violations of human rights, ‘legitimises repressive laws’ and ‘denies people’s rights to struggle for change’. Jenny Edkins and Véronique Pin-Fat, ‘Through the Wire: Relations of Power and Relations of Violence’ (2005) 34 (1) Millennium: Journal of International Studies 2, quoting Maryam Namazie, Executive Director of the International Federation of Iranian Refugees.
¶ 128 Leave a comment on paragraph 128 0  Michel Foucault, ‘The Subject and Power’ in Hubert L. Dreyfus, Paul Rabinow (eds), Michel Foucault: Beyond Structuralism and Hermeneutics (University of Chicago Press, 1982) 208 While dividing practices are forms of domination usually applied towards marginal groups, subjectification refers to ordinary mainstream citizens, on the ‘way a human being turns him- or herself into a subject’ (Ibid). Here the use of power is subtle for while the ‘processes of self-formation’ is perceived as controlled by one’s volition, nonetheless the ‘process of self-understanding’ is ‘mediated by an external authority figure, be he confessor or psychoanalyst’. While one regards his or her views as independently formed, unknown to that person, his or her thoughts are shaped by family, church, media, university or political party. A person’s self-formation have been morphed by way of ‘operations on [their] own bodies, on their own souls, on their own thoughts, on their own conduct’. Paul Rabinow, ‘Introduction’ in Paul Rabinow (ed), The Foucault Reader (Penguin Books, 1987) 11, quoting Michel Foucault, Howison Lectures, Berkeley, 20 October 1980.
¶ 130 Leave a comment on paragraph 130 0  Michel Foucault, The History of Sexuality Vol. 1: The Will to Knowledge (Penguin, 1998) 140. As the individual also reproduces regulations, this makes the external-internal division difficult to maintain.
¶ 131 Leave a comment on paragraph 131 0  Jenny Edkins and Véronique Pin-Fat, ‘Through the Wire: Relations of Power and Relations of Violence’ (2005) 34 (1) Millennium: Journal of International Studies 2, quoting Maryam Namazie, Executive Director of the International Federation of Iranian Refugees.
¶ 136 Leave a comment on paragraph 136 0  Charter of the United Nations art 2(7): ‘[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’.
¶ 137 Leave a comment on paragraph 137 0  Charter of the United Nations art 2(4): ‘the Charter prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States’.
¶ 138 Leave a comment on paragraph 138 0  Muge Kinacioglu, ‘The Principle of Non-Intervention at the United Nations: The Charter Framework and the Legal Debate’ (2005) 10 Perceptions: Journal of International Affairs 15. ‘In international relations, the doctrine of non-intervention has been considered as the most significant means to cope with the “logic of anarchy” that lies at the heart of international politics, and thus becomes the main governing rule of state relations.’ Ibid.
¶ 146 Leave a comment on paragraph 146 0  Michael Karlberg, ‘The Power of Discourse and the Discourse of Power: Pursuing Peace Through Discourse Intervention’ (2005) 10(1) International Journal of Peace Studies 10.
¶ 151 Leave a comment on paragraph 151 0  Thomas G. Weiss and Cindy Collins, Humanitarian Challenges and Intervention: World Politics and the Dilemmas of Help (Westview Press, 1996) 22. Charter of the United Nations art 39 (Chapter VII): ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’.
- ¶ 154 Leave a comment on paragraph 154 0
- ‘Each member of the Security Council shall have one vote.
- Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
- Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting’.
¶ 155 Leave a comment on paragraph 155 0  Weiss and Collins, above n 80. According to Gray, the veto of the five permanent members of the Security Council was used 279 times between 1945 and 1985, with the then Soviet Union exclusively using the veto from 1946-1970, and the United States vetoing for the first time in 1970. As the veto aligns with the permanent members’ respective national interests, it was not only used to prevent the adoption of any action by the Security Council, but also in the threat to use it. Christine Gray, International Law and the Use o f Force (Oxford University Press, 2nd ed,2004) 196
¶ 156 Leave a comment on paragraph 156 0  Maysa S Bydoon, The International Responsibility of the UN for the Internationally Wrongful Acts of the Security Council (PhD Thesis, University of Leicester, 2005) 22-23.
¶ 158 Leave a comment on paragraph 158 0  Norman A. Graebner, ‘Realism and Idealism’ in Richard Dean Burns, Alexander DeConde, and Fredrik Logevall (eds), Encyclopedia of American Foreign Policy (Charles Scribner’s Sons, 2002) 311.
¶ 164 Leave a comment on paragraph 164 0  Vernon Elvin Johnson, An Historical Analysis of Critical Transformations in the Evolution of the Baha’i World Faith (PhD Thesis, Baylor University, 1974) 222.
¶ 166 Leave a comment on paragraph 166 0  Emile Durkheim, The Elementary Forms of Religious Life (Karen Fields trans., The Free Press, 1995) 22. In the Baha’i religion, any attempt to portray God as having anthropomorphic or human-like features, or capture the godhead’s reality through creeds are regarded as ‘human invention’ and ‘exercises in self-deception.’ The Universal House of Justice, One Common Faith (Bahá’í Publications Australia 2005) 19.
¶ 170 Leave a comment on paragraph 170 0  Joanne Benham Rennick, ‘Is Religion a Force for Good? Reformulating the Discourse on Religion and International Development’ 34(2) Canadian Journal of Development Studies 176.
¶ 183 Leave a comment on paragraph 183 0  Article 18 of the Universal Declaration of Human Rights states: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’
¶ 186 Leave a comment on paragraph 186 0  Baha’u’llah says his ‘aim hath ever been, and still is, to suppress whatever is the cause of contention amidst the peoples of the earth, and of separation amongst the nations.’ Bahá’u’lláh, Epistle to the Son of the Wolf (Bahá’í Publishing Trust, 1988) 33.
¶ 206 Leave a comment on paragraph 206 0  Nevzat Soguk and Geoffrey Whitehall, ‘Wandering Grounds: Transversality, Identity, Territoriality, and Movement’ (1999) 28(3) Millennium: Journal of International Studies 685.
¶ 215 Leave a comment on paragraph 215 0  Ibid., citing The Chinese Exclusion Case, 130 U.S. 581 (1889); Fong Yue Ting v. United States, 149 U.S. 698 (1893). See Hesse, ‘The Constitutional Status of the Lawfully Admitted Permanent Resident Alien: The Pre-1917 Cases’, (1959) 68 Yale Law Journal 1587, 1588.
¶ 217 Leave a comment on paragraph 217 0  Antonio Gramci, Selections from the Prison Notebooks of Antonio Gramci (Quentin Hoare and Geoffrey Nowell Smith trans, International Publishers, 1971) 333.
¶ 221 Leave a comment on paragraph 221 0  Gil Marvel Tabucanon, ‘Migration for Environmentally Displaced Pacific Peoples: Legal Options in the Pacific Rim’ (2012) 30(1) UCLA Pacific Basin Law Journal 56.
¶ 222 Leave a comment on paragraph 222 0  Jane McAdam and Ben Saul, ‘An Insecure Climate for Human Security? Climate-Induced Displacement and International Law’, in Alice Edwards and Carla Ferstman (eds), Human Security and Non-citizens: Law, Policy and International Affairs (Cambridge University Press, Cambridge, 2010) 359-60.
¶ 225 Leave a comment on paragraph 225 0  Cheah Wui Ling, ‘Migrant Workers as Citizens within the ASEAN Landscape: International Law and the Singapore Experiment’ (2009) 8(1) Chinese Journal of International Law 207
¶ 226 Leave a comment on paragraph 226 0  Alexander Aleinikoff, ‘International Legal Norms on Migration: Substance without Architecture’ in Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (T.M.C. Asser Press, 2003) 467.
¶ 233 Leave a comment on paragraph 233 0  Nazila Ghanea – Hercock, ‘A Baha’i Critique of Human Rights: State Sovereignty as Smokescreen or Necessary Partner in Securing Human Rights’ in Baha’i Inspired Perspectives on Human Rights (Juxta Publishing Co., 2001) 91.
¶ 238 Leave a comment on paragraph 238 0  International Federation of Red Cross and Red Crescent Societies, Myanmar: Cyclone Nargis 2008 Facts and Figures http://www.ifrc.org/en/news-and-media/news-stories/asia-pacific/myanmar/myanmar-cyclone-nargis-2008-facts-and-figures/
¶ 239 Leave a comment on paragraph 239 0  BBC News, Burma Continues to Reject Help http://news.bbc.co.uk/2/hi/asia-pacific/7397617.stm
¶ 242 Leave a comment on paragraph 242 0  Foucault, above n 56; See also Stuart Hall, Representation: Cultural Representations and Signifying Practices (Sage Publications, 1997); Nelson Phillips and Cynthia Hardy, Discourse Analysis: Investigating Processes of Social Construction (Sage Publications, 2002).
¶ 251 Leave a comment on paragraph 251 0  Hercock, above n 161. China, and the ASEAN countries of Myanmar (Burma), Malaysia and Singapore, for instance, have not ratified the International Covenant on Civil and Political Rights.