Rethinking Humanitarian Intervention with the Silk Road Approach to International Law

[Diya Daniel is a third-year law student at the West Bengal National University of Juridical Sciences, Kolkata]

Mainstream International Law and Homogenous Norms 

International law today, called mainstream international law (“international law”), is theoretically based on cooperation and inclusion. The United Nations (“UN”) Charter, for example, contains references to state sovereignty and equality, which aims to put every state on equal footing. However, the genesis of international law was more exclusionary than it seeks to be perceived as. The traditional understanding of international law regarded non-European states as peripheral during the formation of core concepts in international law. The UN Declaration on Human Rights was inspired by the Magna Carta, the United States Bill of Rights, and the French Declaration of Rights of Man. The classical concept of sovereignty too was taken from the Treaty of Westphalia. Such concepts did not extend to non-European states till during the stages of decolonialization. The discussion of non-European states, rather, extended to questions of what the “developed” states would have to do about non-European land or how these citizens would be governed. Some international law thinkers believe that the United States’ (“US”) dominance should be used to enforce international law as a whole.

Western powers have not shied away from using their dominance in international law to their favour in contemporary times either, stepping on the interests and policies of smaller nations to favour their own. This is especially seen in the formation of new norms. A famous example is the US’ intervention in Panama and Nicaragua. Other examples are international institutions such as the World Bank and the International Monetary Fund (“IMF”), who impose policy choices as conditions for their loans to poor states. 

This piece critiques the Western bias in international law and expands on the Silk Road approach, as laid down by Sergey Sayapin, with humanitarian intervention as an example of a norm where it forms a better alternative. First, the post describes the Silk Road’s history and the peaceful sharing and co-existence of different legal norms. Then, it lays down the tenets of the Silk Road approach. Next, the post highlights the importance of an alternate approach through the example of humanitarian intervention.

The History and Nuances of the Silk Road 

Asian influences were excluded from the stage of creation of legal norms, a so-called blind spot in international law. Scholars have criticized norms such as universal rule of law and how the content of such rules lean towards the culture of the states that made them. Such scholars argue that Asian values or cultural relativism would have allowed for a view of international law that is not overpowered by the West. Asia was where the first civilizations emerged and the first laws were made. But Asia’s economics, history and politics do not receive consistent analysis in international law scholarship. Only a small section of scholarship addresses this. One example of a historical phenomenon suitable for study for international law is the Silk Road. 

The Silk Road was a route of commerce spanning 4000 miles and multiple land and sea routes between China and the Middle East, Africa, and Europe from the 2^nd to the 15^th century. It was one of the most revolutionary trade and culture exchange routes in the world and is unique in world history. These routes were essential for the spread of culture, languages and legal traditions.

At the height of the Silk Road’s popularity, traders would move between different kingdoms and oases in North-Western China that had differing legal systems and cultures, similar to present cities. Traders had to use careful negotiation to traverse across the routes. Merchant guilds were also created on the Silk Road to protect traders. They pooled resources and established operational norms, and standardized weights and prices. These merchant guilds negotiated with rulers and ensured the protection of traders. This created order on the Silk Road. 

The Silk Road facilitated not only trade of goods but also the transfer of legal traditions. The Silk Road is particular as it never had a common law between the constituent entities. Rather, rulers would borrow law from neighbouring areas and modify them to fit local particularities. Officials would use the law system in place to devise solutions for litigants who came from different regions. Even in judicial contexts, courts were willing to hear cases brought by foreign subjects and, at least in one surviving case in historical records, ruled in favour of the foreigner. The Tang Code, used in the Tang dynasty in China in the 5^th century, encouraged judges to refer to laws of other kingdoms when dealing with the matters of foreign persons. There was thus a culture of tolerance for different legal norms. 

The Silk Road Approach to International Law

The most significant fact about the Silk Road was, despite the varied regions that interacted with each other, the Silk Road remained a peaceful method of trading and cultural exchange. It did not lead to wars or colonialism. Such peaceful interaction between multiple legal frameworks makes it an apt site of study for an approach to international law. 

Sayapin writes about how the Silk Road approach believes in the cooperation of states and focuses on the creation of international law through multiple sources instead of a single source. It is an alternative and critique to the overpowering tendencies of Western states in international law. Rather than delegate certain states to a lower status and creating norms unilaterally, the Silk Road approach emphasizes that international law is better made through the collaboration of states and the sharing of legal norms and mutual accommodation. The Silk Road approach frames international law as a framework built through dynamic methods and connectivity between states.

Historical context reveals methods that international law can take inspiration from. Merchant guilds resemble International Organizations such as the World Trade Organization or treaty bodies such as the Committee on Economic, Social and Cultural Rights. These organizations act as middlemen to ensure and protect rights. The approach rejects the domination of uniform legal norms over all states and rejects the imposition of powerful states’ interests over smaller states. This rejection of domination, however, does not apply to peremptory norms, as such norms are the basis of peaceful co-existence and order. 

Relevance in Contemporary International Law

The doctrine of humanitarian intervention provides an illustration of the main issues with international law’s method of norm creation. 

Humanitarian intervention is the use of force by a state beyond their borders to protect the lives of citizens from another state, without the latter state’s consent. Though an established concept, it has no stable legal backing. The UN Charter does not differentiate between regular use of force and humanitarian intervention. The history of the UN Charter shows that the creators did not intend for exceptions to the prohibition of use of force to emerge freely. The commonly-used justification that the law must sometimes be broken to uphold certain values is precarious and puts the concept of state consent at jeopardy. The United Kingdom (“UK”), the US, Denmark, and North Atlantic Treaty Organization allies are some significant names in the approximately 30 states that support unilateral humanitarian intervention. But this pales in comparison to the almost 150 states that consistently do not support it. The G77 is a coalition of 134 states who have rejected the right to unilateral intervention. Thus, humanitarian intervention, with its abrupt rise to relevance and support from Western powers, may be seen as a method for Western powers to carry out their military aims and agendas. The cases of intervention in Kosovo, Rwanda, Libya and Syria are well known as examples of humanitarian intervention. To be thrown into many years of civil war, such as in Libya and Syria, without consultation or for the intervening states to have the option to remove themselves from the consequences of intervention is grossly unfair. The state practice and opinio juris of dissenting states also have to be taken into consideration for an unbiased consideration of the legal validity of a legal norm. Assuming that one state can make a unilateral decision over another’s will goes against the tenet of equality of states in international law. Additionally, assuming that Western powers have the best understanding of humanitarian intervention’s benefits plays into the colonial and Euro-centric origins of international law. 

In contrast, the Silk Road approach would begin from a different premise. No state possesses enough insight into the circumstances of another state nor do they have the right to interfere in matters without such insight. Instead, states working under the Silk Road approach will first exhaust alternatives such as negotiations to put pressure while respecting sovereignty. Additionally, regional organizations such as the Association of Southeast Asian Nations, African Council, and the Organization of American States should be involved in authorizations for interference, rather than just the UN Security Council. Such organizations have better context for activities occurring in that region. 

Dominance of one region’s worldview and policies over the policy choices of other states is especially apparent in the World Bank and the IMF. Formed under Western leadership, they have vastly disproportionate voting shares for Asian states versus Western states. This marginalizes them in decision-making. While availing loans to poorer states, the World Bank and IMF usually place strict conditions on policy choices. Such policies include privatization of essential services and trade liberalization, which are predominantly Western or US-leaning choices. Poorer states, who are in need of capital and resources, will inevitably have to agree. In contrast, the Silk Road approach to international law forms a better base for upholding important norms of equality such as state sovereignty and consent. 

Some contemporary institutions attempt to bring this perspective back to international law. China’s Belt and Road Initiative claims to promote a “community of common human destiny” and a “community with shared future for mankind.”  It affirms that the UN will remain the apex authoritative organization among the states but seeks to establish a new international order based on multi-polarity. The Asian Infrastructure Investment Bank (“AIIB”) also falls in line with the Silk Road approach. The AIIB seeks to have a balanced representation of states in its voting share and does not mandate the fulfilment of specific policy choices. However, these examples may, too, fall to bias. China will have a significant share of voting rights in the AIIB. Policy changes in China may have much larger impacts on other smaller states. 

Conclusion 

The Silk Road approach offers a promising alternative to the current model of international law that has pushed the will of the Western powers since the Treaty of Westphalia. Mainstream international law, born from Europe and strengthened by colonialism, continues to further the interests of powerful states. The doctrine of humanitarian intervention persists despite the discontent of more than a hundred states and has occurred several times in world history. The imposition of policies by the World bank and IMF without express opinions from the receiving state also furthers such Western interests. 

The Silk Road approach does not pretend to have no flaws. It is vulnerable to power dynamics as well. Organizations such as the AIIB still give China significant preference. This approach requires goodwill from states, which can be a tall order in contemporary politics. But the merit of the approach lies in its openness to diversity. The Silk Road functioned without a uniform code of law because the entities on the Road practiced co-existence. This approach, too, considers all states equally and does not give in to the power balances that have controlled the world for millennia. Such an approach, with humility and restraint, is what is required in contemporary international events.