International Law: Execute Not Pardon

12 april 2016

Dispelling Myths about International Law

Kira Sazonova, Ph.D. in Law and Political Science, is an assistant professor at the Russian Presidential Academy of National Economy and Public Administration.

Resume: The norms regarding international responsibility are now reduced to defining the responsibility of states for internationally wrongful acts. Yet the main problem lies in the non-binding nature of the majority of decisions made by bodies of international justice and the incompetence of most of them.

International developments over the last three to five years have created a situation where questioning the practicality of international law, criticizing it for being inefficient and weak, and predicting, with a thoughtful air, its immediate collapse has become not just a commonplace but dominant mode of behavior among many Russian and foreign historians, political analysts and international relations experts. Indeed, the situation does not look encouraging: the cumbersome and overly bureaucratized United Nations; U.S. attempts to establish a unipolar world based on the use of force  and diktat; a phantasmagoric caliphate in the Middle East, terrorizing the whole world; the “great transmigration of peoples” on the Eurasian continent—this list can be continued endlessly. Against this background, statements about a “leading and guiding” role of international law may seem too pompous.

In the Christian theological tradition, there was the institution of the “devil’s advocate:” during the canonization process, a canon lawyer looked for faults in the candidate’s biography that could prevent his canonization. The devil’s advocate opposed “God’s advocate,” whose task was to protect the candidate from criticisms. Later, this tradition began to be used in defending academic theses, when an examiner played the devil’s advocate.

Let us imagine a similar process where contemporary international law is examined as a certain intellectual concept, which should either be given a chance to develop further or be discarded as a relic. In this case, the devil’s advocate is played by the entire international community, which has a long list of complaints and criticisms with regard to international law. Only a few analytical articles refrain from complaining that the accords of seventy years ago have become obsolete, that the UN should be disbanded, that the sanctions are illegal, that diplomacy does not work, and that it is time to take strong measures.

In this article I will try to play God’s advocate and reply to the ten most popular complaints about international law, which I have often heard as a teacher and an international lawyer.

Complaint number one. International law has not evolved since 1945; it is archaic and does not correspond to present-day realities.

International law is not so much archaic as conservative, just like any law. In fact, this aspect of law keeps pace with time—for example, the space and nuclear industries were placed into the framework of international law as soon as they came into being. In addition, many events of the Yalta-Potsdam period had no precedent at all: for example, history had never known a body of international justice, like the International Criminal Court (ICC), which began functioning only in 2002, that is, “just yesterday” by historical standards. Collective peacekeeping by the United Nations emerged through trial and error and developed from the timid Blue Berets to serious peace enforcement operations. Over a relatively short period of time, most aspects of international law, which had been developing for centuries and which had existed as customary law, were codified.

The famous saying of the great Chinese reformer Deng Xiaoping that it was “too early” to assess the historical results of the French Revolution of 1789, although 200 years had passed since then, is a good illustration of the present state of international law. Pros and cons of the Yalta-Potsdam system can be assessed only after it ends. In the meantime, this system, which may look like a windswept, rickety house, continues to stand on a solid foundation.

The only factor that undermines this foundation is that the entire present system of UN-centric international law was created by states and for states, whereas the current world order is increasingly dependent not on states and their sovereignty but on transnational corporations and their interests. It is not that the era of sovereign states is receding into the past, but that it obviously has to “share airtime” with the era of transnational corporations, non-state actors, private military agencies, and terrorist organizations.

As a result, the classical “Westphalian” sovereignty is becoming increasingly blurred. The reason is not just the teeming activity of the Washington-based Fund for Peace, which in its annual Failed States Index looks for ever new targets on the political map for outside interference. The reason is that the stronger the vortex of globalization and the closer integration within regional associations and the more areas of international cooperation acquire legal regulation, the more illusory and unstable state sovereignty becomes.

Complaint number two. The UN fails to fulfill its functions and needs to be reformed.

Indeed, today the United Nations is a huge and hulking colossus trying to embrace a wide range of international issues. This extraordinary palette of issues on the UN agenda obscures the main goal of this organization.

However, this goal is very ambitious and stated at the very beginning of the UN Charter’s Preamble: “To save succeeding generations from the scourge of war.” From the perspective of 1944 when the Charter was written, it would be logical to assume that the signatories meant a global war. Considering that a Third World War has not taken place yet (although its contours are becoming increasingly distinct), we can say that the UN still fulfills its main goal despite the fact that the number of UN member countries has almost quadrupled over the last 70 years and this motley multinational and multi-confessional crowd is harder and harder to handle.

Interestingly, UN reform was on the agenda ten years ago, twenty years ago, and thirty years ago. In fact, the organization needed to be reformed since the early days of its existence.

With regard to the hackneyed “veto power” which allegedly violates the principle of equality and is a relic of the past, we can say that it is only due to this principle that the United Nations did not collapse in the first few years of its existence, as the League of Nations did. It was obvious even before Winston Churchill’s speech in Fulton that the postwar world would inevitably split into two camps as soon as it fulfilled common tasks. Because of the United Nations and the possibility of vetoing UN Security Council resolutions, the two irreconcilable camps had to clench their teeth and come to agreement. The UN was originally built on compromise, and none of its founding fathers viewed it as an omnipotent “world government” or a panacea for all ills, as some people view it now for no apparent reason.

Should the UN Security Council be expanded? Theoretically, this can be done, and perhaps it would be a beautiful and democratic gesture on the part of the great powers. However, it would end in universal euphoria and pompous articles in the media, because the Security Council, where the decision-making process is difficult already now, would then finally become a cumbersome and inefficient body.

The problem is that there is only one way to replace the United Nations, namely by breaking the present Yalta-Potsdam architecture of international relations and changing it to a different one. Yet history has convincingly demonstrated that such systems are changed only through wars, to be more precise, through global wars. We may have to go through that, but it would be better to delay this black day for as long as possible.

Can we do without the United Nations or any other universal organization like that? Of course we can, considering that universal international organizations first appeared only in 1919 when the League of Nations was established. It is never too late to go back to the Middle Ages, with their numerous military alliances and “wars of all against all.” That this is not a very desirable prospect is another matter.

Complaint number three. Modern international law is based on the principle of “non-use or threat of use of force.”

However, news reports show that force continues to be a major factor in world politics. 

First of all, there are two major exceptions to the principle of non-use of force—self-defense and UN peacekeeping operations. Many states try to pass their mistakes off as these legal exceptions. Secondly, due to numerous attempts by individual states to advance their own national interests and, at the same time, to comply with the ban on armed interference, at least in the eyes of the stern “international community,” very many crafty ploys have been invented over the last fifty years to achieve that. For example, there have emerged many mutations of the notion of ‘war’ when adjectives are added to this word to emphasize the unarmed and non-violent nature of influence as in “economic war,” “information war,” or “hybrid war.” In addition, when a real war is at issue, it is now diplomatically replaced by the term ‘armed conflict.’

In fact, everything that is legal today has to do either with economic or information influence on the enemy. Hence the popularity of sanctions and countermeasures, the generous funding of the opposition abroad, the active development of non-governmental foundations, and other soft power tools.

It is attempts to circumvent the ban on the use of military force that have in recent years led to various kinds of sanctions-related activities. It is often said that sanctions are a dishonest way to exert influence on a gross violator of international law. True, it is dishonest. That was why in the early years of the UN Brazil proposed including sanctions in the list of actions classified as “unlawful use of force.” However, at present there are no documents that directly prohibit sanctions; therefore, they cannot be described as an unlawful way of exerting influence. Moreover, we can say that the UN’s unwillingness to accept the Brazilian initiative did the world a good turn, because if economic pressure had been prohibited, along with armed pressure, the Yalta-Potsdam system would hardly have lasted for more than a couple of decades.

The great 17th-century Dutch jurist Hugo Grotius wrote that “there is no intermediate state between war and peace.” “Yes, there is!” argue modern international lawyers. If one wants to put strong pressure on one’s opponent, one uses individual and collective sanctions, countermeasures or counter-sanctions, which came into use after 2014, and the tricky practice of “state terrorism.”

Complaint number four. International law does not regulate the activities of all players of international relations and world politics.

This statement is hard to dispute. Moreover, it is for this reason that international law is a far cry from the universality that is attributed to it. The list of actors of international relations is at least three times longer than the list of actors of public international law. This means that the activities of a vast number of international organizations, including private military and security agencies, multinational corporations, international media holdings, and international non-governmental organizations and foundations are regulated, at best, by some national legislation.

This phenomenon is quite understandable: in the realities of 1945, it was only states that were viewed as the main “rulers of destinies.” It is they that conclude international agreements, take on international obligations and bear (although rarely) international responsibility. In addition to states, international legal personalities include international intergovernmental organizations, as well as “peoples and nations struggling for self-determination.” The latter definition is relative, of course, as it was formulated for developments related to liberation from colonial dependence and struggle against colonial states. In present-day realities, the only people that has legal personality is the Palestinian people. This means that Kurds, Basques, Catalans, Scots and other ethnic groups seeking self-determination are not actors of international law and remain under the jurisdiction of national legislation.

Why is this issue fundamentally important? Because it is only an international legal entity that can be brought to account if it violates international law. In recent years, the situation has become complicated as some radical and terrorist organizations with extensive international networks have begun to usurp functions that are traditionally associated only with the state. For example, the emergence of an unheard-of phenomenon which proudly calls itself the Islamic State of Iraq and the Levant came as a real challenge to the classical concept of international law. Meanwhile, many countries classify it as a terrorist organization, which calls into question its international legal status.

Complaint number five. International law is often violated.

International law is violated not just often but repeatedly. In terms of violations, the UN Charter is second only to the Criminal Code. However, not a single country in the world would want to abolish criminal law because of repeated murders and robberies.

Paradoxically, contemporary international law is one of the most effective branches of law. If its most important task is “to save succeeding generations from the scourge of war,” as is written in the UN Charter, we can say that the seventy years without global wars is a very good achievement.

The main problem with international legal norms is not even that they are violated but that they are interpreted differently by different states. The bulk of the problems related to international law stem from different interpretations of international documents in the national doctrines of Russia, the UK, the U.S., Israel, the Netherlands, France, Austria, Norway, and Germany. Differences in interpretations are due to several factors: significant differences in legal systems, in national legal technicalities, and in foreign-policy objectives.

It would be a big mistake to believe in impartiality of international lawyers. Like constitutional, administrative, financial or other lawyers, they work primarily with national legislation, adapting its provisions to specific international legal obligations assumed by the state and in accordance with its national interest. A good case in point is the Just War theory which dates back to the Middle Ages and which was elaborated by Thomas Aquinas, Niccolo Machiavelli and Carl von Clausewitz. This concept hardly means anything to Russian lawyers of today, but it is very dear to the hearts of most American experts who have breathed new life into it and who now actively promote it.

In addition, many difficulties in international law arise during implementation, when all norms have been formulated, all documents signed, and when all possible moves by states have been worked out in advance. However, it is at this stage, when the provisions of the new document must come into effect in the national legal system through reception, incorporation or reference, that fundamental differences in legal systems show themselves in full force.

Complaint number six. International law allows double standards with regard to the recognition of self-proclaimed states.

In fact, the situation is even sadder. The absence of adequate legal regulation concerning the recognition of self-proclaimed states leads to arbitrary decisions by states in this matter.

A classical example is that the United States has recognized Kosovo but has not recognized Abkhazia and South Ossetia, whereas the Russian Federation, by contrast, has recognized Abkhazia and South Ossetia but has not recognized Kosovo. This leads us to a reasonable question: How so? There is not a single international legal document that would explicitly say who, how, in what form and by what criteria should recognize new state entities. As a matter of fact, the United Nations Secretariat and the Secretary General distance themselves from this issue in every way, leaving it for states to decide, which do it according to their own interests and at their own whim.

But here arises another reasonable question: Why not work out and sign a joint convention that would regulate the recognition issue? The answer is simple: its text would be hard to agree. In addition, such a convention is unlikely to enter into effect because of a small number of signatories.

Complaint number seven. Human rights are not respected, notwithstanding the fact that they are declared the highest value in international law.

Like international law in general, the human rights issue has fallen victim to the syndrome of inflated expectations. In fact, human rights have become a magic formula repeatedly brought up in the media in order to accuse, justify, or add weight to some arguments.

As a result, it is human rights that have become a target for fierce speculations concerning international law. It is absolutely obvious that differences in legal, social, economic and cultural aspects do not allow modern states to fulfill their common imperative norm stipulating “respect for human rights.” For example, it would be strange to expect identical fulfillment of this principle in countries belonging to the Anglo-Saxon legal system, on the one hand, and to the Sharia system, on the other. The most telling example is the legal regulation of the death penalty, which differs significantly in various countries, although the “right to life” is enshrined in the Universal Declaration of Human Rights adopted in 1948. Another illustrative example is the polar positions of countries on the issues of euthanasia, abortion, and activities of the LGBT community.

In addition, the human rights issue is miles away from being universally interpreted. For example, let’s take the trite concepts of “genocide” and “apartheid.” It would seem that the legal basis for defining these international crimes is obvious—the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 and the International Convention on the Suppression and Punishment of the Crime of Apartheid of November 30, 1973. Nevertheless, states are reluctant to unanimously recognize the Armenian genocide, to blame the U.S. for the genocide of Indians and racial segregation, or to require that China respect the rights of Tibetans. Human rights have been, and continue to be, a matter of predominantly national regulation.

Complaint number eight. Provisions of international law are not binding.

By and large, they are not. Despite the existence of ten imperative norms of international law which constitute its foundation, international law is, on the whole, “boundlessly optional.” Russian classical writer Mikhail Saltykov-Shchedrin wrote about Russian laws that “their severity is mitigated by the ease of their circumvention.” This is true of international law as well. There has emerged the phenomenon of “international soft law” which comprises a vast array of decisions and resolutions of international organizations. They are not binding per se, but they exert pressure on the subconsciousness of statesmen and gradually lay the foundation for new branches.

If we picture international relations regulated by international law as a color diagram where, for example, the red color denotes military cooperation, the yellow color denotes trade and economic relations, and gray denotes areas not regulated by international law at all, the prevailing color in the diagram will be gray. It would be absolutely wrong to think of international law as a global code, as a code of laws, and as an inviolable stronghold regulating all aspects of interstate interaction. In fact, it regulates only those areas where states have reached compromise. Everything else is a “gray area” which is beyond international law.

The concept of “universality” of international law, which is very popular in the media today, in practice does great harm to this already problem-ridden sphere. When we read in news reports or hear in talk shows phrases like “banned weapons,” “violation of international norms” and so on, the first thing one should do is go and find a concrete provision of a concrete document that was allegedly violated, and then check whether the state accused of its violation has signed this document. And if it has not signed it, then this concrete state cannot be hold responsible for that.

Any international legal document is binding only on those states that have signed it. No one has the right to impose more obligations on a state than it is willing to assume. If you do not want to recognize the jurisdiction of the International Criminal Court and sign the Rome Statute, that’s fine. If you do not deem it necessary to ban anti-personnel mines and laser weapons, do not sign respective treaties and use these weapons. This is the way the United States often acts—it simply does not sign major international legal documents, among them the International Covenant on Economic, Social and Cultural Rights of 1966, the Convention on the Law of the Sea of 1982, the Convention on the Rights of the Child of 1989, and many others, thus not assuming obligations contained in these documents.

Complaint number nine. The United States is the main enemy of the existing system of international law.

The widespread view that the U.S. disdains international law and constantly violates its provisions is absolutely wrong. First of all, American lawyers were among the most active architects of the Yalta-Potsdam system. No matter how hard the Americans may now complain that the UN Charter is actually a charter for the “pre-nuclear” era and that more benefits could have been reaped from the postwar balance of power, it is nevertheless obvious that the current configuration, in which the U.S., along with Great Britain, Russia, France, and China, has special powers against the background of democracy and equality, is very convenient.

Secondly, if we read American publications on international law, we will see that American lawyers work hard to invent ever new ways to interpret international law in a format that would conform to U.S. foreign policy objectives. To this end, they use special legal technicalities and extensive interpretations.

Eventually, if we look at key international legal concepts of the past thirty years that were intended to substantiate the need to use force within the framework of nominal law, we will see that their authors are largely U.S. lawyers. The concepts of “humanitarian intervention,” “just war,” “responsibility to protect,” and “failed states” are only a small portion of the doctrines that creative American experts have developed to add legitimacy to U.S. aggressive actions in the eyes of the international community.

The carnage in former Yugoslavia, the invasions of Iraq and Afghanistan, and the establishment of a no-fly zone over Libya through the complete destruction of the Libyan air force—all these actions, which Russia’s doctrine of international law found illegitimate, were placed on a clear legal basis in the United States’ international law doctrine. As U.S. scholar William O’Brien wrote, “Military operations involve planning, training and execution. More recently, they have begun to require justification.”

Complaint number ten. International law is very loyal to its violators.

Loyal is not the word for it. Since international law has no means of coercion and the supranational level is only taking shape, most violators of international law do not have to worry.

Most illustrative of the non-binding nature of many norms of international law is that part which deals with international responsibility. Its regulatory framework is now reduced only to the adoption of draft articles on the responsibility of states for internationally wrongful acts in 2001 and draft articles on the responsibility of international organizations in 2011. However the main problem does not lies in documents but in the non-binding nature of the majority of decisions made by bodies of international justice and the incompetence of most of them.

What images appear in the mind of a person who is planning to violate the law? These images may differ, depending on a country and an era: a smoothly operating guillotine; cold torture chambers in a prison; an uncomfortable electric chair; or a lethal injection into the blood stream. Quite a reason to get scared and think twice. The threat of what punishment can scare or stop a state and its political leaders? What images should arise in the minds of people who make a decision to start a war or organize genocide? What should the proverbial “international community” be like in order to deter potential aggressors and violators? One thing is clear—modern international law does not have the coercive capability that could stop a state planning to violate the UN Charter.

The situation is further compounded when it comes to the responsibility of international organizations, for example, the North Atlantic Treaty Organization. What claims can be advanced against the alliance which exceeded its mandate to use force in a peacekeeping operation? The conflict in former Yugoslavia clearly demonstrated that no claims can be advanced against it for the simple reason that none of the existing bodies of international justice will consider a case involving unlawful use of force, in which one of the parties is an international organization. This is why the European Court of Human Rights shifted cases to the International Court of Justice, and eventually both bodies said they did not have the required jurisdiction. As a result, the International Criminal Tribunal for the former Yugoslavia, which has jurisdiction over individuals (not states), came as the only format for prosecution.

Another complication was that NATO troops in Yugoslavia partly operated under a UN mandate, and there emerged an effect that can be described as a “matryoshka effect,” when states were united in an organization, which, in turn, was subordinated to another organization. For example, the issue of the United Nations’ responsibility for NATO’s actions was taken to a court in the Netherlands in connection with the Srebrenica massacre. The court established that “these acts and omissions should be attributed strictly, as a matter of principle, to the United Nations.” However, when considering an appeal against this decision, the court held the Netherlands responsible for those events as the defendant state. The Netherlands, in turn, said it had been opposed to the bombings of former Yugoslavia, that it was not to blame and that the blame should go to NATO. And so on, and so forth. Things become even more complicated when private military and security agencies, whose services are actively used by states and international organizations, take part in such operations and when their members act in excess of their powers. No one will find out anything then.

It is indicative, for example, that the notion of “collateral damage,” which denotes civilians killed or injured during combat and which is very popular among NATO commanders, continues to feature extensively in the alliance’s press reviews. Meanwhile, NATO bears no international responsibility and when it compensates victims of some event, these payments are made ex gratia, without admitting liability.

The branch of international law that deals with international responsibility is severely underdeveloped and this is a fundamental drawback of modern international law and its true Achilles’ heel.

 

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International law is not the Golden Tablet, nor is it a divine revelation. It was created and agreed by pragmatic people who had concrete pragmatic goals. It has a limited jurisdiction and applies to a limited range of actors.

At the same time, until 1945, international law was more like diplomatic etiquette, constituting a set of norms, rules, customs and traditions, which made international relations a little bit more orderly but which no actor of these relations took seriously. Therefore, it is funny to hear some people say today that international law is in deep crisis. In fact, it has always been in crisis. There has never been a period in the known history of human civilization when international law was strictly observed, when states behaved peacefully and with dignity, and when the international atmosphere was permeated with the spirit of love, kindness and understanding.

Quite possibly, the Yalta-Potsdam system could have followed in the footsteps of its precursors—the Versailles-Washington, Vienna, and Westphalian systems. However, after the first combat use of nuclear weapons, the picture of the world changed dramatically. Political analysts began to use the terms “zero-sum game” and “mutual assured destruction.” Preserving international law and maintaining its authority today is a task connected with survival and the fundamental instinct of man—the instinct of self-preservation.

By contrast, there has emerged the phenomenon of international law as a journalistic cliché—criticized, ineffective, feeble and responsible for all the ills of the world. It is opposed, to the best of its ability, by a legal concept of international law as a flexible and multilayer phenomenon, which is narrowly focused on the sphere of military interaction of states. Human rights, the environment, humanitarian cooperation, and international integration all sound good and certainly have an international legal basis, but these branches are way too secondary to the core task of maintaining international peace and security.

What is particularly surprising is the vehemence with which political analysts, journalists and experts of all kinds lash out at international law and everything that is related to it in one way or another. Any expert, more or less aware of the balance of power in contemporary international relations and understanding the consequences of a possible use of weapons of mass destruction, should stand up for international law. All scenarios of the present and the future that ignore the factor of international law resemble fictional dystopias or apocalyptic novels.

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