By Keith Best
In my last piece on this I examined the sources of international law with passing reference to treaties and a greater examination of customary international law. The source and legitimacy of world law is important as to its universal acceptance and applicability. I made the point that customary law looks at the acceptance of states of the obligations inherent in such practice. It also includes the way in which those states’ political representatives and institutions (legislature, judiciary etc) appear to accept that they are bound by such measures. As the ICJ stated in the case of Nicaragua in 1986 ‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.’
Does the Rule of Law matter?
Why is the rule of law so important? We shall take it for granted at our peril if we do not understand its fundamental raison d’etre. Essentially, it is the curtailment of abuse of power which is important at any level of governance. In England we had a few problems with our kings (only a few queens!) claiming that their divine right to rule rendered them accountable only to God and not to earthly powers. It is a concept, of course, of great antiquity and did not apply just to England. Our history is a litany of how that claimed superior power was tamed and brought within the rule of law. This delicate balance was explained by the 13th century jurist Bracton: “The king has a superior, namely, God. Also, the law by which he was made king… The king must not be under man but under God and under the law, because the law makes the king . . . for there is no rex where will rules rather than lex.” We fought a civil war over the issue of Parliament and the law curtailing the monarch’s powers and the monarch lost his head! In a High Court ruling against the Attorney-General in January 1977 Lord Denning said “To every subject of this land, however powerful, I would use Thomas Fuller’s words over three hundred years ago, ‘Be ye never so high, the law is above you.’” Fuller was writing at the time of the civil war. I examine this theme in greater detail in the chapter in our recent book Religious Soft Diplomacy and The United Nations: Religious: Engagement as Loyal Opposition (https://rowman.com/Lexington).
In human rights and humanitarian law circles one often speaks of the Geneva Conventions (the four conventions) of 1949 protecting wounded and sick soldiers on land and sea, prisoners of war and civilians in times of war. They form the basis of modern humanitarian law regulating armed conflict. For the first time domestic, such as civil wars, rather than just inter-state conflict was covered. There are now 194 states parties. A number of the rules and principles contained in these treaties also exist under customary law. There is little doubt that were a combatant state to ignore these rules there would be an international outcry.
A tribunal with teeth
Yet there is one international court with more teeth – the International Criminal Court (ICC) which, since WFM/IGP created the Coalition of civil society supporting its creation in the mid-1990s, many lawyers have kindly told me would not exist today had it not been for the efforts of the Coalition. Only recently to its three crimes justiciable by the court (genocide, war crimes and crimes against humanity) has been added the crime of aggression. There is a separate signatory process for this and it will apply only to those states that become parties to it (and, of course, it is not restrospective) but were the invasion of Crimea to occur today, even if, for the reasons above, Russia could not be brought before the Court, the evidence of a breach of what may well become customary international law would be apparent for all to see.
A lesson in perseverance
This of us who were active in WFM/IGP in the 1970s will recall the indefatigable efforts of Amb Tommy Koh for ten years in negotiating the Convention on the Law of the Sea (UNCLOS) under the auspices of the United Nations, which was signed in 1982 by 117 States and entered into force in 1994. It was a wonderful example of how perseverance can achieve a fundamental global need, namely a law governing the management of our oceans which, after all, cover 71% of the earth’s surface. UNCLOS is interesting in this regard because it both codified customary international law and established new law and institutions for the ocean. It took ten years to come to fruition (at WFM/IGP we always need to take the long view!) but its comprehensive nature is a testament to the effort involved. In the words of Amb Koh “we created a new record in legal history. Never in the annals of international law had a Convention been signed by 119 countries on the very first day on which it was opened for signature…from every region of the world.”
What about compliance?
Why would states honour the obligations in such treaties or conventions when (subject to their provisions also having become customary international law) a sovereign state can revoke such convention and no longer abide by it? The answer is in the customary obligation of states to abide by their undertakings. There are also treaties that seek to encapsulate existing law and/or practice or govern the way in which states apply their obligations such as the 1969 Vienna Convention on the Law of Treaties. It its preamble the Convention notes “that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized” (“pacta sunt servanda” = treaties ought to be respected) and makes it clear that “the present Convention applies to treaties between States” (Art.1). Moreover, although the Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements which are not in written form it states specifically that this does not affect the legal force of such agreements. It is under this Convention, for example, that if you or I are detained by a foreign power then it is obliged to give us consular access. Although only about half the states in the world are parties to it the provisions are, nevertheless, regarded as being customary law applicable to all.
We should remember also that many treaties are not there to encapsulate universally applicable norms on human or state behaviour but are bilateral or multilateral ones between states regulating the trade between them or the supply of materials and products such as energy.
The strength of practice
There have evolved many practices which may not have the strength of international law but will carry weight in determining whether or not a state is abiding by general principles – such as open trials at which a defendant is allowed representation and the ability to give evidence on their behalf. Some of these, of course, such as the right to life, are enshrined in the European Convention of Human Rights or emanate from the Universal Declaration of Human Rights, the legal effect of the latter being set out on the UN Human Rights Commissioner’s website: “The Declaration is not, in itself, a legally binding instrument. However, it contains a series of principles and rights that are based on human rights standards enshrined in other international instruments that are legally binding – such as the International Covenant on Civil and Political Rights. Moreover, the Declaration was adopted by consensus by the General Assembly and therefore represents a very strong commitment by States to its implementation. States are increasingly considering adopting the Declaration as binding national legislation.”
The legal lacuna
There does not exist an international judiciary handing down judgments that are binding on all states (the Statute of the ICJ specifically provides that judgements are binding only on the parties to the court and, as we all know, in order to come before the court in the first place, the parties have to agree to its jurisdiction). Under Article 36 the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force but Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law. This means that there can be no binding precedent set by one judgment that might affect a subsequent case with similar circumstances. Nevertheless, the ICJ itself refers to its previous judgments which indicates, subliminally, that these are likely to be regarded as international law. The utility of the ICJ, however, as The Gambia recently has exercised in its case about Myanmar and the Rohingya, is that it can determine any question of international law and the existence of any fact which, if established, would constitute a breach of an international obligation.
What about the UN itself? The resolutions of the UN General Assembly do not constitute international law – they are not legally binding. In contrast to this, the decisions of the UN Security Council are legally binding on all states (the duty on a state to carry out such decisions is superior to any other international agreement).
Ius Cogens
Finally, before looking at how we can improve the creation of binding international law, let me examine ius cogens which is described by Anne Lagerwall in Oxford Bibliogrpahies as a Latin phrase that literally means “compelling law.” It designates norms from which no derogation is permitted by way of particular agreements. It stems from the idea already known in Roman law that certain legal rules cannot be contracted out, given the fundamental values they uphold. At its sixty-seventh session (2015), the International Law Commission decided to include the topic “Jus cogens” in its programme of work and appointed Mr. Dire Tladi as Special Rapporteur for the topic and two years later gave it a new title of “Peremptory norms of general international law (jus cogens). It gave a definition of “A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” and commented that such norms reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable. To be ius cogens it must be a norm of international law and be accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. A treaty is void if at its conclusion it conflicts with an existing ius cogens.
The world federalist answer
For world federalists we need a better way of creating international law which, at the global level, is more a reflection of national legislative creation. Namely, we need a legislature which can pass binding laws: the obvious candidate is the UN General Assembly but, as we always maintain, with an accountability to a universally elected UN Parliamentary Assembly scrutinising its work (and possibly having the capacity to suggest revision and amendment). We have long urged the mandatory jurisdiction of the ICJ which then could become a true world court interpreting and requiring compliance with international law. There remains the age-old problem of enforcement: if a state is in default how does the international community ensure compliance? Without an enforcement wing (and that is very unlikely to happen) the international community has to fall back on its existing mechanisms of sanctions. Yet there would be an added dimension if both the legislature and judiciary were enhanced as I have suggested – the obloquy for a state to have been found guilty of not complying with agreed norms and its consequent inability to participate in any global forum. That in itself should provide the stimulus we require.
Final word Let the last word be with Amb Tommy Koh’s remarks on UNCLOS: “We have strengthened the United Nations by proving that with political will, nations can use the Organisation as a centre to harmonise their actions. We have shown that with good leadership and management the United Nations can be an efficient forum for the negotiation of complex issues. We celebrate the victory of the rue of law and of the principle of the peaceful settlement of disputes. Finally, we celebrate human solidarity and the reality of interdependence which is symbolised by the United Nations Conference on the Law of the Sea.”