Chapter Six -- Strengthening the Rule of Law World-Wide
The rule of law was asserted and, at the same time, undermined; from the outset the World Court was marginalized. When the founders of the United Nations drew up the Charter, the rule of law world-wide loomed as one of its central components. They established the International Court of Justice at The Hague--commonly known as the World Court--as the 'cathedral of law' in the global system. But states were free to take it or leave it, in whole or in part. The rule of law was asserted and, at the same time, undermined. Each state could decide whether it was going to accept the compulsory jurisdiction of the World Court. And a great many did not. Thus, from the outset, the World Court was marginalized. Most of the time, international law works well without a need to resort to adjudication. International treaties have been an important basis for achieving co-operation on matters ranging from aviation and shipping to environmental protection and trade. Compliance with legal standards has generally been good even when the short-term interests of a state might have favoured a breach. The great majority of disputes are resolved peacefully. Nevertheless, in the post-war era the development of international law on some issues, and its use to resolve disputes, has fallen short of what many hoped for. The period was characterized by the rule of military power and economic strength--and these were exercised often in denial, or even defiance, of international legal norms. The world must change course as it works to build the global neighbourhood. Comparatively recent in origin, international law includes the body of legal rules and principles that apply among states and also between them and other actors, including those of global civil society and other international organizations. Scholars once argued that international law was not law in the true sense, as there was no international police force to enforce it, no sanctions if it were disobeyed, and no international legislature. But with the growth in use of international law, these arguments are heard less often today. The standing of international law is now unquestioned. The challenge today--as at the national level--is to sustain the respect for law that has developed. Not surprisingly, some argue that there has been more progress in developing the rules of war than the rules of peace. Although states are sovereign, they are not free individually to do whatever they want. Just as local norms and customs (often embedded in national constitutions) mean that a state cannot do whatever it wishes within its own borders, so global rules of custom constrain the freedoms of sovereign states. There may be no police force, although the Security Council sometimes compels compliance with international law, but a commonality of self-interest dictates that general conformity is to the advantage of all. International standards are usually self-enforced, with states, international institutions, and civil society organizations applying a general social pressure for compliance. Many international regimes include reporting requirements and systems of oversight and control. States and individual officials value a reputation for respecting legal commitments. In many states, national law and national courts help promote compliance with international standards. The rules of international law, like the precepts of international morality, are normative, prescribing standards of conduct. They often embody ethical standards, just as national laws do. These rules derive from state practice, from what states actually do, just like the customary or common law found within many legal systems. But unlike moral rules, they lend themselves to adjudication and, at least potentially, enforcement. In the multilateral area, the United Nations has played a leading and dynamic role. It also serves as the official repository for any treaty or international agreement between member-states. The post-war decades have witnessed a veritable explosion in treaties, most of which are registered with the Secretariat of the United Nations. This volume of activity confirms that modern states desire to order at least some of their international relations within a properly developed legal framework. This was not always the case. Until the post-war period, international law suffered as a global concept by being centred on Europe. Developing countries, in particular, felt--not without justification--that international law was both based on Christian values and designed to advance Western expansion. It was made in Europe, by European jurists, to serve European ends. Now, however, particularly given the independence of former colonies, many nation-states can and do take an active part in the process of international law-making. Even when they choose not to, their own conduct of international affairs--their own state practice--is in itself a source of international customary law. No longer is it credible for a state to turn its back on international law, alleging a bias towards European values and influence. Indeed, European states now sometimes argue that the process that once upheld their own values and morality has lost its cutting edge through the impact of other states on customary international law and compromises to achieve the wide endorsement essential to international conventions. But the need for compromise is true of all law. A binding compact needs the strongest consensus. Many international organizations, such as the International Labour Organization and the International Maritime Organization, play significant roles in multilateral convention-making. Global civil society organizations, such as trade unions and industry associations, make significant contributions to the process. The UN International Law Commission (ILC) also has an important role. This thirty-four-member subsidiary organ of the UN General Assembly was established in 1947 to make recommendations for the progressive development and codification of international law. After the ILC has completed work on a draft convention, it sends it to the General Assembly, which may convene an international conference to draw up a formal convention. The ILC's role is to draft and recommend. This function needs to be highlighted and expanded. Through this multilateral treaty-making process, international law can be codified, with customary international law expressed in written statements. In this way it can be modernized much more quickly than by waiting for state practice to develop to the point where it coheres into law. Just as national parliaments have tended to resort to legislation to modernize domestic legal systems, so too has the international community depended on law-making. This has occasionally happened with commendable speed, especially where commonly shared values were threatened, proving that international law-making need not always be a long, drawn-out process. One landmark achievement was the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The UN quickly obtained agreement on new features of the international framework for combating international drug trafficking, including measures on mutual legal assistance to seize, freeze, and arrange forfeiture of the proceeds of drug trafficking. A second notable example is the Montreal Protocol on Substances that Deplete the Ozone Layer, signed in 1987 by many of the world's nations when the scientific evidence of the connection between chlorofluorocarbon use and the decay of the earth's protective ozone layer became clearer. Yet the sense of urgency that drove law-making in these two cases is absent all too often. Ratification and scrutiny are important to the legitimacy and acceptability of international legal instruments. Nevertheless, internal political processes within nation-states themselves may also become obstacles to adoption of international standards. Perhaps the most startling example of a government failing to secure domestic support for new treaty obligations occurred when isolationists in the US Senate blocked that nation's ratification of the decisions taken at the Paris Peace Conference of 1919. As a result, not only did the United States have to conclude its own bilateral peace treaty with Germany, it also failed ever to become a member of the League of Nations. In the contemporary world, populist action has the potential to strike down the carefully crafted products of international deliberation, usually on the grounds of nationalism. Yielding to internal political pressures can in a moment destroy the results of a decade of toil. One of the challenges for governments in an era of democracy is to ensure that the public understands the nature of international law-making processes and supports them. Only then can long-term considerations prevail over short-term expediency. Strengthening International Law In an ideal world, acceptance of the compulsory jurisdiction of the World Court would be a prerequisite for UN membership. Most international disputes are settled by negotiation. Third parties, including other states and individuals, may provide 'good offices' or may take on more proactive roles as mediators or conciliators. In international as in domestic politics, not all disputes are suitable for binding third-party settlement. Nevertheless, for international law and the ethical values it protects to be enforced, there must be a credible forum staffed by individuals of the highest standing, independence, and integrity, who are willing and able to adjudicate on the grave matters that come before them. In its absence, freedom of political manuvring is maximized, and self-serving interpretations of international law can be asserted unilaterally in the Security Council and elsewhere. Only when the interests of both parties are served by binding third-party settlement are disputes referred to forms of adjudication. The Statute of the World Court provides for the Court to entertain contentious cases only between states. The Court is needed because of the long-established practice that in sovereign (as distinct from state trading) matters, states enjoy immunity from the jurisdiction of each others' courts unless immunity is expressly waived to settle a specific dispute. The World Court is but the latest in a series of tribunals and procedural arrangements dating back to the Conventions for the Pacific Settlement of Disputes concluded at the first and second Peace Conferences at The Hague, in 1899 and 1907. The goal was to establish a court in which all had confidence. Elihu Root, then US Secretary of State, observed in his instructions to his delegation that the objection to arbitration rested not on an unwillingness of states to submit disputes to impartial arbitration, but to an apprehension that the arbitrators would not be impartial. What Elihu Root wanted then--and what the world still needs today--is a tribunal that states have confidence in, composed of 'judicial officers, and nothing else, who are paid adequate salaries, who have no other occupation, and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility'. The UN Charter sought to provide such a tribunal. The judges of the World Court are adequately remunerated, have no conflicting interests, and devote their entire time to the trial and decision of international cases and to academic writings on the development of international jurisprudence. The Court has jurisdiction only where the states that are parties to a dispute have agreed to abide by its decision. This can happen in any of three ways. States in dispute that have accepted the 'compulsory jurisdiction' of the Court as laid out in Article 36, paragraph 2, of its statute may agree to submit a case to it. In May 1989, the Republic of Nauru commenced proceedings against the Commonwealth of Australia under this optional clause. Nauru was seeking a declaration from the Court that Australia was bound to make restitution or reparation for the damage and prejudice Nauru had suffered, primarily as a result of Australia's failure to remedy the environmental damage it had caused there. Australia accepted the Court's decision on jurisdiction by participating in the merits phase. However, the case was subsequently settled by the parties out of court. A second ground for jurisdiction is where the disputing parties have previously agreed in a treaty to submit to the Court any disputes that may arise under it. Cases under this category are started by a unilateral filing of an application. A notable example of this was the case brought by the United States in 1979 against Iran over the seizure of the US Embassy in Tehran and the detention of US diplomatic staff. In a more recent case, Bosnia-Hercegovina instituted proceedings against the truncated Yugoslav state (Serbia and Montenegro) in March 1993, alleging genocidal behaviour. In the third category, states may refer a dispute to the Court by a special agreement. This involves the submission of a dispute, or of particular questions relating to a dispute, to a Court whose membership is more or less known at the time of submission. An example of this was the reference to the Court of the dispute between Libya and Malta on the delimitation of the continental shelf between the two countries, on which the Court made a decision in 1985. Of the UN's 184 member-states, 57 have accepted the Court's jurisdiction under the optional clause, and ad hoc consent is not forthcoming in nearly enough cases. We view these statistics as alarming. Treaties are the principal source of jurisdiction in contentious cases before the World Court. At present, some countries accept the Court's jurisdiction without qualification in all cases that may arise. Many others do so only when the state wishing to proceed against them has also done so. A number of states, however, are willing to use the World Court only when it suits their short-term interests. This last situation is wholly unsatisfactory. The standing of the Court was challenged by the actions of both France and the United States in the 1970s and 1980s. In the Nicaragua case, the United States responded to a suit brought by Nicaragua by appearing and strenuously contesting the right of the Court to hear the case. But when the Court ruled in favour of having competence to do so, the United States refused to participate further in the case. After condemning the Court for deciding that it had jurisdiction, the United States in October 1985 withdrew its consent to the compulsory jurisdiction of the Court under Article 36(2) of the Court's Statute. A decade earlier, the Nuclear Tests cases had been brought by Australia and New Zealand against France under the Court's compulsory jurisdiction clause. France refused to appear or to abide by the Court's interim order to avoid nuclear tests causing the deposit of radioactive fall-out on Australian or New Zealand territory. From two countries that claim leadership in international affairs, these were both serious blows to the rule of law world-wide. These cases do not represent a general attitude of defiance of the Court. Indeed, the Court has gradually increased in stature and is now used more frequently. However, misgivings as to judicial methods and judicial responsibility linger--fed in some instances by inferences, rightly or wrongly drawn, that a particular judge has stretched international jurisprudence beyond its limits. Similar criticisms are often heard about national courts of the highest repute. Nevertheless, even a semblance of justification for such criticism needs to be removed. That is why transparent and justifiable structures and processes for judicial appointment are needed. The criteria and methods for the selection of judges for the World Court must be addressed; without confidence-building mechanisms, the ability of the international community to assert and protect its core values through a truly effective Court will remain elusive. In an ideal world, acceptance of the compulsory jurisdiction of the World Court would be a prerequisite for UN membership. Those who wish to belong to the community of nations should be willing to abide by its rules and demonstrate their willingness by accepting the competence of its highest legal body. This opportunity has been missed, however. The United Nations and its membership are now facts of life, and some states--including, at present, four of the five permanent members of the Security Council--have denied the Court compulsory jurisdiction under the optional clause. In the interest of maintaining the rule of law in the global neighbourhood, we urge these states to reconsider their position. Each member of the community of nations that has not already done so should accept the compulsory jurisdiction of the Court. At the same time, we propose a number of measures to respond to the concerns of those who have expressed a lack of confidence in this body. Certain states are uneasy about the World Court as an arbitrator of disputes. Yet some have none the less on occasion used the Court's so-called chamber procedure. Under this method, a small group of Court judges, as few as three or five, is agreed to by the states that are party to a dispute; these judges then sit, in effect, as arbitrators. Some still see this procedure as a diminution of the standing and function of the Court. We understand that reaction, but prefer to see resort to the chamber procedure as evidence of states' willingness to submit to independent decisions. On this the international community must build. The chamber procedure is not without dangers. Chambers of judges selected by the parties to a dispute are arbitral in character rather than genuinely adjudicatory. Decisions by chambers consisting of a minority of judges or judges from the same region may not be recognized as binding precedents by the full Court in later cases. In litigation involving states from one particular region, a party-selected chamber could end up consisting of judges only from that region or legal culture. The use of chambers also could threaten the unity of the Court. These dangers must be avoided. Clearly, states may be more willing to accept the Court's jurisdiction if they can participate in determining the judges who constitute the ad hoc chamber. However, the chamber procedure should be modified in ways that address these dangers. One way to do this would be to require the President of the Court to appoint a member to serve on a chamber with the members of the Court selected by the parties to the dispute. Some states opt to remain outside the compulsory jurisdiction of the World Court because of the process for the selection and re-election of judges to the Court. Judges are elected by the General Assembly and the Security Council. Successful candidates must command the support of a majority in both fora. They are elected for nine years. We would like to see introduced a system of screening of potential members of the Court for both jurisprudential skills and proven objectivity. This practice is already followed in many countries, which have processes for consultation with or even approval by independent national bodies before a person is elevated to high judicial office. Such a system would not affect the involvement of all states through the General Assembly or displace the role of the Security Council in the political act of selection. It would mean judges were chosen from a slate of candidates who all have the required experience, skills, and independence of mind. Both the General Assembly and the Security Council would be free to ask for a further set of candidates. We believe that this procedure would lead to a panel of judges that commanded the confidence all nations seek. Further consultations are needed on how precisely the screening process should be framed. Clearly it should involve eminent jurists of independent mind from all the regional groups of the United Nations, and consist of people who have no ambitions themselves to sit on or practise before the Court. National law societies of member-states could play a role in the process. To remove any residual misgivings about the independence of the Court, judges should be appointed for only one term of ten years, and then retire on full pension. This should be coupled with a compulsory retirement age of 75. It is contrary to the traditions of many legal systems for judges to submit themselves for re-election or reselection. It is also contrary to UN guidelines and basic principles on the independence of the judiciary. By limiting appointments to one term, it should be possible to avoid the demeaning spectacle of judges canvassing personally or through diplomats in New York for their reappointment--and seeking support, in some instances, from the representatives of states with cases outstanding on the Court list. More important, any suspicion that a judge's conclusions had been tempered by thoughts of re-election would be excluded. The choice of judges for the World Court has assumed too high a level of politicization. Unchecked, this can only further erode confidence in the Court. We repeat, however, that the final decision would and should be a political one. It is altogether right that those who have to submit themselves to the Court's jurisdiction should have confidence in those appointed to sit in judgement. But the parameters of those processes should be contained within bounds. The proposed changes in the way judges are appointed and in their terms could be implemented by a procedural resolution of the General Assembly without any formal amendment to the statute of the Court. Doing so would ensure that the whole process of selection and tenure yields a bench of judges in whom, collectively and individually, the world community can have complete confidence. Steps to Compulsory Jurisdiction If the compulsory jurisdiction of the World Court in all cases will not be accepted immediately by every member of the United Nations, there are some areas of the law in which all states might be persuaded to accept it. A start might be made with disputes between states over continental shelf and exclusive economic zone boundaries, and possibly other land and maritime boundaries. The World Court possesses considerable experience in this area. The Court's proven expertise and the existence of a mature body of case law deserve to be recognized. The fact that such disputes can threaten peace and security is further good reason why states should be ready to accept the Court's universal competence in this area. A development in this direction would also be consistent with moves in other fora. It is now a near-universal practice for states in trading agreements to concur in advance to submit disputes to arbitration under one of the well-established international arbitration centres around the world. There is also a practice of providing in advance for dispute resolution procedures in major treaties, the most recent example being the Understanding on Rules and Procedures Governing the Settlement of Disputes signed in Marrakesh in April 1994. Under the new system, members of the World Trade Organization commit themselves not to take unilateral action against perceived violations of the trade rules. They have pledged instead to use the new dispute settlement system, and to abide by its rules and procedures. The world community needs to minimize the occasions in which states in dispute have first to agree on a settlement mechanism before the merits of the case can be examined. This would speed up possible resort to third-party settlement, based on international legal norms, while providing an incentive for rapid agreement on the substance of a dispute ahead of any hearing. States should be encouraged to include in future agreements and treaties provisions that spell out the mechanism for the settlement of any disputes that may arise. If progress can be made in this way, international confidence may build to the point where doubters are won over to the concept of compulsory jurisdiction in all matters. To aid this process, areas of jurisdiction should be identified in which acceptance of the compulsory jurisdiction of the World Court could be achieved on a piecemeal basis. Empowering the Secretary-General At present, the Security Council, the General Assembly, and other organs and agencies of the United Nations have the power to request advisory opinions from the World Court. In view of the emphasis now rightly placed on preventive diplomacy, the UN Secretary-General also should be able to refer the legal dimensions of emerging disputes to the World Court at an early stage for an advisory opinion. Such action may well--in at least some instances--assist in the peaceful determination of a dispute that otherwise might threaten international peace and security. States generally have a strong wish to be seen as having international law on their own side, and the prospect of a decision that this was not the case could be a salutary one. Having the Secretary-General take this step could also provide a political cooling-off period while the Court came to a decision. There will be instances, of course, where resort to the Court may be inappropriate or ineffectual. Yet no one suggests that a domestic court has no deterrent effect just because it is not omnipotent. Limitations on effectiveness are no excuse for failing to reinforce the Secretary-General's position in this practical way. It follows that the World Court would itself need to develop fast-track procedures for handling such matters, which should have higher priority than other cases before the Court. There should be time-saving reforms, including streamlining of procedures. Such techniques are increasingly being used in the highest courts of individual states, and could also be used at the World Court. The availability of fast-track procedures might well encourage governments to turn to the Court if they thought they could get a quick pronouncement on their side, as a way to influence public opinion. The Security Council and the World Court The Security Council should make greater use of the World Court as a source of advisory opinions. The Security Council is, of course, the supreme organ of the United Nations. It can even second-guess the World Court by refusing requests to implement the Court's decisions. Some of its resolutions are themselves a source of international law, and propositions of international law are frequently asserted in the Council. We considered at length whether the Security Council should subject its own decisions to review by the World Court, at least on procedural matters. If it did so, the Council would be in the same position as several member-states in their own jurisdictions, where courts can adjudicate on the legality of state action. No explicit power is given to the World Court to review the legality at international law of Security Council actions. Yet in many states, including the United States, this power of review by the highest national courts has arisen even in the absence of explicit constitutional or statutory language. In addition, the UN Charter refers to the International Court of Justice as the organization's 'principal judicial organ'. It can be argued that this implies a power of judicial review. An example of the confusion that can result from the Security Council acting as it does is provided by the present dispute stemming from the crash of Pan Am flight 103 over Lockerbie in Scotland. Libya has been required by the Security Council to extradite suspects who are its citizens. Yet under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aircraft, Libya is entitled to have these individuals tried in a Libyan court. Furthermore, as a general principle of international law, states are not required to surrender their own citizens (to whom they owe a duty of protection); they should instead prosecute them in their own countries. If an international criminal court existed (as advocated later in this chapter), it could have heard the case against the Libyan suspects for this act of international terrorism. Notwithstanding that some states have often used precepts of international law as a shield to justify their failure to act responsibly within the protection of their own borders (for example, Libya has failed to prosecute the Lockerbie suspects even in its own courts), questions have arisen about whether the Security Council should have respected Libya's rights at international law, rather than endeavouring to override them. And some have questioned whether, in a legal sense, the placing of the bomb that caused the aircraft to crash--despicable though it was--really did constitute a threat against international peace and security, and whether the Security Council had a firm basis for the action it has taken. The World Court would probably seek to avoid confrontation with the Security Council by regarding it as enjoying exclusive competence to judge whether particular actions constituted a threat to international peace and security. But just where the line might be drawn is difficult to say. Certainly, recurring disputes between the Council and the Court as to competence would be wholly undesirable, and in the best interests of neither. It is also true to say that an overly legalistic approach might cut off developments that, if allowed to progress, might be of benefit to all. The present degree of humanitarian concern in the international protection of human rights is a good example of a development that most around the world would applaud. Yet at an earlier stage, this might have been hampered had the World Court come down firmly on the side of a state not being exposed to interference in its internal affairs, as guaranteed by the UN Charter. Although we see the value of the Security Council not being completely free from legal oversight, we do not recommend at this stage a right of review of all Security Council decisions in the World Court. In any event, if eventually there is a form of judicial review, it would probably need to be confined to certain issues relating to the 'constitutionality' of Security Council actions, to the defence of the Charter itself, and to certain related rule of law issues. The Court would intervene only when there was a clear conflict between a decision of the Council and its constitution. We also considered whether a state or group of states should be able to petition the World Court to provide advice on proposed action by the Security Council. While the Council cannot be challenged once it has reached a decision, should its decision-making process be the subject of advice and counsel by the World Court? For reasons discussed already, we concluded that such a mechanism would expose both the Security Council and the Court to the real risk of friction. Still, we looked for ways in which instances of potential illegality by the Security Council could be minimized. The mechanism we suggest is having a distinguished legal person available to provide to the Security Council at an early stage independent advice on international legal propositions. Such an individual--perhaps a retired member of the World Court--would be appointed (or reappointed) by the Security Council on the advice of the ILC or some other expert legal body. This person would act vis-à-vis the Security Council in much the same way that an Attorney-General does vis-à-vis the Cabinet in most parliamentary democracies. As the Attorney-General, the Council's legal adviser would not in any way usurp the ultimate responsibility of the Council to take the definitive political decision on any matter in respect of which his or her advice is sought. A legal expert who provided advice that commanded respect could play a key role in clarifying issues and contributing to a speedier--and more assuredly lawful--conduct of the Council's business. Most important, this would not simply be an additional function for existing UN staff members. The legal expert would need to enjoy independence from the Secretary-General's own advisers. The expert would be the Council's own lawyer, serving the international community with a mandate to warn the Council privately, during informal consultations, if it is in danger of transgressing legal norms. Respect for the rule of international law must start with the highest organ of the UN system. The Security Council should also turn to the World Court more often in the dispatch of its own business. Provision for this already exists, but is too little used. Obviously, much of the Council's business is of compelling urgency and time constraints have contributed to its opting, in effect, to act as its own arbiter on the applicability of international law in particular circumstances. But this has happened more frequently than many would have wished. We would prefer to see the Council taking this course as a last resort, after having carefully considered the feasibility of asking the Court for an advisory opinion. This further emphasizes the need for the World Court to have procedures that would expedite the resolution of urgent cases. We certainly feel the Security Council should make greater use of the World Court as a source of advisory opinions and, wherever possible, avoid being the judge in disputes on what international law may or may not be in particular cases. An International Criminal Court The absence of an international criminal court discredits the rule of law. It must be established soon. The concept of an international criminal court is an old one. Efforts to establish such a court date back to 1945. Since then, the feasibility has been studied by several reputable institutions, including the International Law Commission. We believe that the absence of such an international court discredits the rule of law. It must be established soon. A major step was taken towards establishing an international criminal court in July 1994, when the ILC adopted statutes for a proposed court. This is a welcome development. Some have argued that such a court would infringe on national sovereignty, because national courts have exclusive jurisdiction over crimes committed on their territories. Yet sovereign states have already recognized international jurisdiction over crimes by ratifying or acceding to treaties prohibiting genocide, torture, and other crimes against humanity. The 1948 Genocide Convention actually envisages the possibility of an international criminal court. Also, certain crimes, such as acts of terrorism, are international precisely because they occur across national borders. As noted earlier, the bombing of Pan Am flight 103 over Lockerbie, Scotland, is a tragic example of an international crime that transcended many borders and that could have been tried before an international criminal court had one existed. Some argue, too, that an international criminal court should only be established on an ad hoc, case-by-case basis. The time it has taken to agree upon and establish a court to deal with crimes committed during the conflict in the former Yugoslavia, however, supports the argument for a permanent court. Some question why the Yugoslav conflict has become the focus of an ad hoc court when other crimes against international law are being, or have been, perpetrated elsewhere. A similar tribunal has been proposed to try perpetrators of genocide in Rwanda. It is precisely such apparent selectivity that would be avoided by having a standing court. Its existence might also serve as a source of deterrence. And a standing court would overcome the problems of delays and selection that an ad hoc court could face. As in a domestic setting, justice delayed can be justice denied. An international criminal court should have an independent prosecutor or a panel of prosecutors of the highest moral character, as well as the highest level of competence and experience in investigating and prosecuting criminal cases. Upon receipt of a complaint or at his or her own initiative, the prosecutor's primary responsibility would be to investigate an alleged crime and prosecute suspected offenders for any crimes that are within the court's jurisdiction. The prosecutor would, of course, have to act independently and not seek or receive instructions from any government or other source. The Security Council could also refer cases to the court when it determined that the crime in question constituted a threat to international peace and security. The matter is a complex one, giving rise to questions of legal systems, investigations, procedures, and punishments, to name but a few. If it must be established by treaty, it will clearly take many years, even decades, before it is in place. We urge swift examination of various possibilities, and early action on the most promising. We would like to see such a court instituted as a matter of the highest priority. The very essence of global governance is the capacity of the international community to ensure compliance with the rules of society. In a world in which the rule of international law was respected, enforcement procedures would not be needed. In a world in which it is not, universal enforcement may not be achievable. Of course, international law can be, and is, enforced through a number of avenues. Domestic courts in the legal systems of many member-states take account of international rights and obligations in deciding on cases that come before them. And in an increasing number of legal systems, there is a growing awareness of the universality of international law and the norms it embodies, and a readiness to consider these when judging individual cases. The norms of international law--particularly on human rights--are already guiding judges in cases in individual countries as they rightly seek to ensure, to the extent allowed by their legal system, that universally recognized norms and values are protected domestically. We applaud this development, recognizing as it does the commonality of global identity. This process should be encouraged by courts being more ready than in the past to admit cases in which individuals and non-governmental organizations (NGOs) seek to enforce compliance with international norms in domestic courts, or wish to ensure that their government's foreign policy is in conformity with them. Numerous regional and supranational mechanisms also exist: the Inter-American Court of Human Rights, the European Court of Human Rights, and the European Court of Justice, to name but three. And as noted earlier, dispute-settlement mechanisms are increasingly being provided in international treaties. States, corporations, and individuals should also consider resorting to such institutions as the International Center for the Settlement of Investment Disputes, a tribunal set up by the World Bank. A necessary condition for strengthening the rule of law world-wide is an efficient monitoring and compliance regime. Without this, states are tempted to embrace international norms and agreements and then not follow through on their obligations. The very essence of global governance is the capacity of the international community to ensure compliance with the rules of society. International law is routinely observed by states because they believe it is in their best and long-term interest to do so. But it is breached whenever the violators believe that such action will fetch them handsome rewards, and that they can get away with it. Incentives and disincentives are needed to encourage compliance and deter non-compliance. We recognize that questions of compliance can often be contested. The acceptable level of compliance will also depend on the issues, the context, and the type of obligation involved. In the environmental field, for example, technical and financial assistance will help reduce the inability of certain states to comply with new and emerging standards. Thus the 1990 amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer made this the first major treaty under which the parties actually put up some funds to help developing countries defray the incremental costs of compliance. We recommend the inclusion of such provisions in treaties where that is an effective way of achieving compliance by states that might otherwise find it difficult to do so. Similarly, in the security field, there are areas in which arrangements for compliance are clearly insufficient. Examples are crimes against humanity, terrorism, and kidnapping. The international criminal court just recommended could enhance compliance in the security and human rights area. The best way to secure compliance with other security-related rules is to stop violations before they take place. This is the essence of preventive diplomacy, as discussed in Chapter Three. Beyond the court system, the technical, organizational, and lobbying skills of some NGOs are an efficient means of achieving enhanced compliance. We encourage these groups to continue lobbying and pressuring governments, multilateral institutions, transnational corporations, and other subjects of international law to comply with their international legal obligations. Although these groups are essential in bringing about desired policy goals under domestic as well as international legal systems, few international agreements or implementing bodies explicitly acknowledge this role or include NGOs in their compliance mechanisms. Greater transparency will also increase the likelihood that national policy decisions comply with agreed international standards. Above all, increased resort to as well as improvement of dispute-settlement procedures will help clear some of the ambiguity that frequently serves as justification for non-compliance. Membership of the United Nations confers considerable advantages, rights, and privileges. Enjoyment of these benefits creates a responsibility to comply with the rules of the UN Charter. The easiest and most efficient way to encourage or secure compliance with international norms is through voluntary, not coercive, means. Methods to encourage compliance include direct contact, publicity and the mobilization of shame, deterrence, peaceful settlement procedures, sanctions, and, as a last resort, expulsion from intergovernmental organizations or the UN itself. In most cases, a judgement of the World Court is enough to settle a dispute, and states generally comply. In exceptional cases of non-compliance, however, the only effective enforcement may be through a Security Council resolution. We do not emphasize formal enforcement measures; but failing voluntary compliance, we recommend Security Council enforcement of World Court decisions and other international legal obligations. Article 94 of the Charter gives the Security Council the power to 'make recommendations or decide upon measures to be taken to give effect to the judgement' of the World Court. This provision has been dormant. Because of the veto, the Security Council has been powerless against a permanent member, even in legal matters. In the Nicaragua case referred to earlier, the Security Council was not in a position to enforce a judgement against a country that had the power of veto. We believe a reformed Security Council, as proposed in Chapter Five, will be less constrained in promoting compliance with World Court decisions. The global neighbourhood of the future must be characterized by law, not lawlessness. The traditional ways that international law is formed and developed are time-consuming and generally lack any sense of urgency. Even allowing for the delay inevitable in negotiating a text that achieves the consensus support of the global community, these processes fail to provide the international law-making service that today's modern, fast-paced global community requires. International law has evolved techniques to respond to this challenge. Standards may be set by instruments (such as resolutions of some international organizations) that are technically non-binding but in fact have considerable influence on behaviour. If applied in practice, these standards may begin to assume some legal status. This is the hardening of so-called soft law. Treaties may establish procedures for rapid amendment when new data become available, as in the Montreal Protocol. Or they may be applied provisionally while awaiting formal ratification. Differential obligations may be established for states facing different conditions, in order to reach agreement on higher and more effective standards. Institutions may have special rule-making powers, binding even states that do not formally agree to a particular rule. Influential standards may be proposed by civil society organizations. Customary international law may be established more quickly now than in the past. Rules not binding on all states may nevertheless influence behaviour: for example, regulations adopted by a few states may be copied in others and eventually applied in most national systems. Law-making has evolved, but the gradualism at the core of the present system remains an inheritance from the past. It was suitable for a world community with far fewer states and where technology, population, and the environment were not matters of concern. It was a leisurely, club-like approach to international law-making that simply cannot serve today's global society. Accordingly, some appropriate body should be mandated to explore ways in which international law-making can be expedited--without, of course, calling into question the consensual nature of international law itself. There is clearly no profit in embarking on international law-making for its own sake and without realistic chances of attracting sufficient support for new proposals. Efforts are made by international law-making fora within the UN system to liaise with outside counterparts, such as The Hague Conference on Private International Law, to eliminate overlap and assign responsibilities. This is all well and good. But a single organization should formally co-ordinate international law-making, setting timetables and establishing lines of authority. We see such an organization--which could be a revamped International Law Commission--as being proactive. Its immediate tasks should be to energize states and give international law-making the prominence it requires, both in terms of priorities and of resources allocated to it by member-states. To reach all these goals, we look for the emergence of a group of 'good global citizen' states and representatives of civil society organizations. This group should be prepared to work together and provide leadership. They should lead by example and moral suasion, and work towards the ends we have outlined in all international fora where they are active. In particular, there is work to be done in reforming aspects of the UN system, whether by Charter amendment or otherwise. Without a mechanism to carry this programme forward, the full potential of the international rule of law as a means for peaceful resolution of disputes will remain unrealized. The emerging global neighbourhood needs to live by a new ethic that is underpinned by a culture of law. The world community has at least the beginnings of a potentially effective legal system to support global governance arrangements. Myriad contemporary multilateral and bilateral treaties and arrangements exist, along with established customary law. In addition, several judicial and non-judicial mechanisms exist that, with the necessary political will, can effectively encourage compliance or enforce the law. The weaknesses in the international legal system today are largely a reflection of weaknesses in the overall international system. Although there is urgent need for new laws, for better compliance mechanisms, and for more effective enforcement machinery, political will on the part of states is an indispensable requirement for progress in this direction. The world must strive to ensure that the global neighbourhood of the future is characterized by law, not by lawlessness; by rules that all must respect; by the reality that all, including the weakest, are equal under the law and that none, including the most powerful, is above the law. This, in turn, requires a will to lead by those who can, and a willingness by the rest to join and help in the common effort. Summary of Proposals in Chapter Six
|
|
|