From a Community of States Towards a Universal Community?

Abstract

The present chapter discusses the concept of “international community”, which deals with its identity and its legal nature, and then with the problem of protecting and defending the interests of this community. With regard to the issue of identity, attention is paid to three phases: the inception phase, that begun in the mid-1960s, when the international community was conceived as a community of States; the development phase, running from the 1970s, where the idea of international community developed and was linked to the concepts of “humanity” and of “international civil society”; and period of the relative decline, that begun after 1995, when the explicit reference to international community decreased, especially in UN practice. The second part of the chapter concerns the legal nature of the international community. This community really exists, but it is also a legal fiction, which means that whatever doubts may exist about its sociological reality, it does exist in positive international law, as illustrated by the text of a number of treaties. The notion of “international community” is to be seen as balancing the principle of sovereign equality of States. It is based on the affirmation of a social solidarity about a community of values and interests shared by all States and by each human being. However, who is in charge of protecting the interests of this community? States, acting individually or collectively, remain the main responsible for defending these interests, under the law of State responsibility. But, since that law is incomplete, the role of the judge should be important. However, in the light of the incompleteness of the law and, in particular, the limited way in which the international judge deals with jus cogens, one should conclude that the rights and interests of the international community as a whole can hardly be diligently preserved, at least in the near future.