The Future of International Law
TRANSCEND MEMBERS, 17 Sep 2012
John Scales Avery – TRANSCEND Media Service
“With law shall the land be built up, but with lawlessness laid waste.” — Njals Saga, (Iceland, ca. 1280 A.D.)
It is becoming increasingly clear that the concept of the absolutely sovereign nation-state is a dangerous anachronism in a world of thermonuclear weapons, instantaneous communication, and economic interdependence. Probably our best hope for the future lies in developing the United Nations into a World Federation. The strengthened United Nations should have a legislature with the power to make laws that are binding on individuals, and the ability to arrest and try individual political leaders for violations of these laws. The world federation should also have the military and legal powers necessary to guarantee the human rights of ethnic minorities within nations.
The Charter should not be thought of as cast in concrete for all time. It needs instead to grow with the requirements of our increasingly interdependent global society. We should remember that the Charter was drafted and signed before the first nuclear bomb was dropped on Hiroshima; and it also could not anticipate the extraordinary development of international trade and communication which characterizes the world today.
Among the weaknesses of the present U.N. Charter is the fact that it does not give the United Nations the power to make laws which are binding on individuals. At present, in international law, we treat nations as though they were persons: We punish entire nations by sanctions when the law is broken, even when only the leaders are guilty, even though the burdens of the sanctions fall most heavily on the poorest and least guilty of the citizens, and even though sanctions often have the effect of uniting the citizens of a country behind the guilty leaders. To be effective, the United Nations needs a legislature with the power to make laws which are binding on individuals, and the power to to arrest individual political leaders for flagrant violations of international law.
Another weakness of the present United Nations Charter is the principle of “one nation one vote” in the General Assembly. This principle seems to establish equality between nations, but in fact it is very unfair: For example it gives a citizen of China or India less than a thousandth the voting power of a citizen of Malta or Iceland. A reform of the voting system is clearly needed.
The present United Nations Charter contains guarantees of human rights, but there is no effective mechanism for enforcing these guarantees. In fact there is a conflict between the parts of the Charter protecting human rights and the concept of absolute national sovereignty. Recent history has given us many examples of atrocities committed against ethnic minorities by leaders of nation-states, who claim that sovereignty gives them the right to run their internal affairs as they wish, free from outside interference.
One feels that it ought to be the responsibility of the international community to prevent gross violations of human rights, such as genocide. If this is in conflict with the notion of absolute national sovereignty, then sovereignty must yield. In fact, the concept of the absolutely sovereign nation-state as the the supreme political entity is already being eroded by the overriding need for international law. Recently, for example, the Parliament of Great Britain, one of the oldest national parliaments, acknowledged that laws made by the European Union take precedence over English common law.
Today the development of technology has made global communication almost instantaneous. We sit in our living rooms and watch, via satellite, events taking place on the opposite side of the globe. Likewise the growth of world trade has brought distant countries into close economic contact with each other. Financial tremors in Tokyo can shake New York.
The impact of contemporary science and technology on transportation and communication has effectively abolished distance in relations between nations. This close contact and interdependence will increasingly require effective international law to prevent conflicts. However, the need for international law must be balanced against the desirability of local self-government. Like biological diversity, the cultural diversity of humankind is a treasure to be carefully guarded. A balance or compromise between these two desirable goals could be achieved by granting only a few carefully chosen powers to a strengthened United Nations with sovereignty over all other issues retained by the member states.
The International Criminal Court
In 1998, in Rome, representatives of 120 countries signed a statute establishing a International Criminal Court, with jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Four years were to pass before the necessary ratifications were gathered, but by Thursday, April 11, 2002, 66 nations had ratified the Rome agreement, 6 more than the 60 needed to make the court permanent.
It would be impossible to overstate the importance of the International Criminal Court. At last international law acting on individuals has become a reality! The only effective and just way that international laws can act is to make individuals responsible and punishable, since (in the words of Alexander Hamilton), “To coerce states is one of the maddest projects ever devised.” In an increasingly interdependent world, international law has become a necessity. We cannot have peace and justice without it. But the coercion of states is neither just nor feasible, and therefore international laws must act on individuals.
The jurisdiction of the ICC is at present limited to a very narrow class of crimes. In fact, the ICC does not at present act on the crime of aggression, although this crime is listed in the Rome Statute, and although there are plans for its future inclusion in the ICC’s activities. The global community will have a chance to see how the Court works in practice, and in the future the community will undoubtedly decide to broaden the ICC’s range of jurisdiction.
Only 7 nations voted against the Rome Statute of the International Criminal Court in 1998: China, Iraq, Libya, Yemen, Qatar, Israel and the United States. Despite the negative US vote in 1998, President Clinton signed the Rome Statute on December 31, 2000. However, two years later, the George W. Bush Administration withdrew the US signature and began a comprehensive campaign to undermine the ICC. On August 3, 2002, Bush signed into law the American Service members’ Protection Act, which featured a prohibition on US cooperation with the ICC; an “invasion of the Hague” provision, authorizing the President to use military force to free US personnel detained by the ICC; punishment of States that join the ICC; and finally, a prohibition of US participation in peacekeeping activities unless immunity from the ICC is guaranteed for US personnel. Finally, the Bush Administration tried to negotiate a large number of bilateral treaties in which other nations would promise never to hand over US citizens to the International Criminal Court.
The motives behind this campaign against the ICC are easy to understand. If one wants to maintain an empire, war is a necessity. How else can a powerful nation exert its power? On the other hand, the Nuremberg Principles, the Universal Declaration of Human Rights, the ICC and the United Nations Charter are all aimed at making war illegal and impossible. Especially the Nuremberg Principles and the International Criminal Court aim at placing the responsibility for crimes against peace on individuals. The individual political leader is now responsible. The individual soldier is responsible.
Despite the faults that we can notice in the present operation of the International Criminal Court; despite the fact that the Court is sometimes unable to enforce its rulings; despite the opposition from powerful countries; despite the fact that Court sometimes neglects glaring crimes against humanity or war crimes committed by powerful countries; nevertheless, the ICC is there; it is functioning; we can work with it; we can improve it and ultimately expand its range of jurisdiction. The ICC gives us hope for a peaceful global future, where government under law will replace tyranny by brutal and rapacious military power.
Our interdependent world needs international law. We must have law for peace, for “with law shall the land be built up, but with lawlessness, laid waste”.
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John Scales Avery, Ph.D. is a member of the TRANSCEND Network and Associate Professor Emeritus at the H.C. Ørsted Institute, University of Copenhagen, Denmark. He received his training in theoretical physics and theoretical chemistry at M.I.T., the University of Chicago and the University of London. He is the author of numerous books and articles both on scientific topics and on broader social questions. His most recent book is “Crisis 21: Civilization’s Crisis in the 21st Century.”
This article originally appeared on Transcend Media Service (TMS) on 17 Sep 2012.
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The above article is very interesting and may inspire exciting discussions on the contemporary and future international law. In fact, while reading the article, I have learned a lot from it.
Prof. Dr. Avery, the author of the above article, says, “Probably our best hope for the future lies in developing the United Nations into a World Federation.” Then, international law might well be called “World Federation Law.” International law is based on the structure of the international community in which all sovereign States are supposed to be “legally” (but not necessarily politically, militarily or economically) equal. In the contemporary international structure each sovereign State, in the relation with other sovereign State, is allowed to create legal norms. In the World Federation Law, however, the Federal authorities are (mostly or substantially, if not necessarily all) to create legal norms to bind virtually all the Federal Member States. In other words, international law rules sovereign States in the horizontal manner, while the World Federation Law rules the Federal Member States in the vertical manner. This difference is substantial and can never be overlooked.
Decisions (but not necessarily all of them though) of the UN Security Council binds all or relevant the Member States, because these decisions of the UNSC are considered as a part of international law (or considered to have the legal nature in one way or another) that binds the Member States. In the United Nations, peace and security (and other relevant) issues are decided by the Security Council. This means that only 15 Member States of the UNSC, among 193 Member States, decide the destiny of all (or relevant) the Member States. Furthermore, among these 15 States, only five of them have the right to exercise the veto. The veto power of the five Permanent Member States reflects the power structure of the international community during and after WWII. This reflection does not necessarily reflect exactly the contemporary international political power relations but it still reflects it to a high degree.
If the World Federation will be established, will the substantial equality – politically, militarily, economically, etc. — among its Member States be achieved? That is a big question in the discussion on the World Federation. If the equality as such will not be achieved in the system of the World Federation, it will be highly likely that only a handful of powerful Member States of the World Federation will decide (mostly or substantially, if not all) the destiny of the World Federation; at the same time, all other Member States may lose (mostly or substantially, if not all) the power to create legal norms to bind themselves as international law currently allows sovereign States to do so. This means that a handful of the Member States of the World Federation will actually be able to rule the whole World! Then, it will possibly be much worse than the UNSC system. Let me repeat in order to emphasize this: The question is not whether the World Federation should be established or not. It is “What (legal) system of the World Federation?” That is, will the World Federation truly achieve the substantial equality among its Member States? Unfortunately, its perspectives are dim, at least in the foreseeable future. Well, the perspectives on establishing the World Federation (or the perspectives on developing the UN into the World Federation) are dim, at least in the foreseeable future.
But we do not need to be pessimistic. Let’s have a hope for our future generations.