Tuesday, 26 January 2010

On "International Law"

I respect greatly the principles and intellectual calibre of the Foreign Office lawyers who today gave evidence to the Chilcot Inquiry.

I am afraid, however, I largely view "international law" as a well-meaning fiction.

As Elizabeth Wilmshurst correctly conceded, it is not enforceable, at least as it stands.

I share fully the liberal - but normative view - that it should be enforceable, but as a positive statement of law (in any meaningful way), "international law" does not exist.

If you say softly it should exist, I will agree.

If you demand loudly that it should exist, I am with you.

But, if you say it does exist, then I will have to ask you where and how it is enforceable.

For, to adapt Tim Minchin in Storm, what do you call "international law" which is actually enforceable before a court or tribunal?



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Neil D said...

Paradoxically, if it was enforced, then much of the current debate about Chilcot wouldn't be happening because International Law would have prevented Saddam from continually breaching UN resolutions and might even have held him to account for the murder of over 100,000 people in the Anfal campaign.

The Kosovo war was not agreed under international law, and some people still argue it was illegal. But it was a result of that stand, that led to the (admittedly farcical) trial of Slobodan Milošević and Radovan Karadžić's current appearance in court.

So paradoxically, if international law was all that the people who want Blair strung up want it to be, I suspect Blair would have been one of the people most keen to enforce it.

Oriel boy said...

"For, to adapt Tim Minchin in Storm, what do you call "international law" which is actually enforceable before a court or tribunal? Law."

Huh? This doesn't seem relevant.

Compare with this:

For, what do you call "trust law" which is actually enforceable before a court or tribunal? Law.

But trust law exists. Therefore the analogy with the Minchin quote isn't relevant as far as I can tell.

Richard said...

Surely it's a bit more messy than that - ie. there is a recognised set of principles grounded in the Geneva Conventions, the Rome Statute and various other international treaties, and these have been enforced on occasions, but only on very rare occasions... Namely the Nuremburg tribunal, the International Criminal Tribunal for Rwanda, the ICT for Yugoslavia and the International Criminal Court. There have also been a handful of prosecutions for torture (including in this country, when we prosecuted a former Afghan warlord a few years back) and genocide in national courts under "universal jurisdiction". While it's true that these were simply national courts exercising national laws, many of those national laws enabling such prosecutions only came into existence as a result of the country in question ratifying an international treaty that they had signed - the basis for such prosecutions being that torture and genocide are crimes under international law that all states have a prima facie duty (albeit one usually ignored) to prosecute.

Interestingly the "Crime of Agression" is one international crime that the ICC does not currently have authority to prosecute - and given the control exercised over it by the UN Security Council it seems unlikely this will change any time soon... Of course the picture is complicated further by the fact that many states refuse to sign/ratify treaties like the Rome Statute so I guess they could argue that these are not genuinely 'international'.

ivan said...

What we do seem to have in a few cases is extra-territorial law:

Britain arrested General Pinochet because Spain requested his extradition in relation to acts committed in Chile. And put a warrant out for the Israeli foreign minister in relation to acts carried out in the occupied territories.

A Mexican hotel refused to accommodate some visitors from Cuba, because under US law US-owned businesses are required to respect US trade sanctions wherever they do business. Since this US law requires further that US-owned businesses refuse to obey any trade sanctions of any other country, in principle it would seem impossible for US companies legally to do business in any country with different trade sanctions from the US.

Whilst the legal sanctions occasionally taken in Ireland in relation to the possibility of people travelling in case they should do things that would be legal in their destination country, are well known, it is perhaps less well known that Britain recently took legal sanctions against someone in relation to a late term abortion legally carried out in a foreign country where the term limits are longer than in Britain.

The US requested the extradition of some UK bankers whom it alleged had committed a fraud entirely in the course of business in the UK, albeit with US clients. Astonishingly, the UK delivered these people up rather than prosecute them in the UK.

And of course Britain prosecutes foreign people in relation to what they have published in foreign countries.

These kind of cases make me worry that I might arrive in some foreign country and find myself prosecuted for having had sex outside of wedlock in my home country.

Botogol said...

Within the EU there seems to be quite a lot of enforcable international law.

Carl Legge said...

It's a while since I did jursiprudence so this may be a bit off, anyway...

For there to be a 'law' to enforce a 'community' needs to have one or both of: (1) a source of power which can make judgements and compel enforcement over the jurisdiction and/or (2) a community that agrees to be or acquieses in being subject to the law. In the international sphere neither exists.

Taking this on, given that there are few case precedents, both the nature and status of the obligations under international law must be moot; at least at the margins. Given this, despite not being 'an International Lawyer' (pace Wilmshurst) Jack Straw might, therefore, correctly have called the advice he received 'dogmatic'.

Paul said...

To quote the Bard, it is more honoured in the breach than the observance, however given the tortuous lengths that those who breach it go to carve out an exemption under international law for their breach (for instance, the extreme lengths to create a legal justification for the Iraq War), it is at least deemed important enough to warrant going to great lengths to appear to be observing it.

After all, if it didn't exist, there wouldn't have been attempts to justify the war at all.

Moreover, the vast majority of international law is observed, quietly and in the background. You, an Englishman in England, have published a blog using an American firm's software (both in your computer, and as a blogging platform), and published it on the internet, where it is read. There's quite a bit of international law that has allowed that to happen. Any time you send mail overseas, receive or make an international phonecall, fly anywhere. That's international law that allows that.

Just as the fact that murder happens doesn't mean that there is no law against murder, so too the existence of war doesn't mean international law doesn't exist.

Enforceability is a problem, true, as is the case in any horizontal legal system, but compliance (even against a State's interests) is quite high.

NickA said...

Is "international law" law? This is an old chestnut - and discussed extensively in the texts and sources. The short answer is that "international law" does exist and it does have enforcement mechanisms. In the overwhelming majority of cases it works reasonably well dealing with rather boring matters where nations interact with other nations (international trade, treaties, international boundaries, law of the sea ...). Even when nations go to war with each other, they generally observe the laws of war (the Geneva Conventions).

But the enforcement mechanisms in international law are subtle - and "rogue states" could flout their obligations under international law if they choose to do so without being "arrested" by an international police force. The fact that there are so few rogue states that choose to flout their international obligations does rather suggest that the enforcement mechanisms are stronger than might first appear to be the case. Interesting also that states do seek to justify their actions under international law (pace the Goldsmith opinion justifying the invasion of Iraq), rather than just going ahead and ignoring it altogether ...

NickA said...

@Carl Legge "given that there are few case precedents ..."

There are (at least) 138 volumes in the "International Law Reports" series - and although the ILRs report the major cases, they do not report every case which has an international law aspect.

There is no shortage of case precedents (or indeed other sources of law).

Evan Price said...

Jack, I tend to agree with you ... although it is the public international law that tends to create the problems that you identify rather than the private (although even that is not exactly clear when one considers how difficult it is to deal with the consistent breaches of laws relating to data and copyright globally).

Which rather makes this a question I want to ask, but am not sure whether it is wise to ... what is the purpose of examining the legality of the Iraq War especially when one considers that the enquiry team are neither lawyers nor judicial?

Steve said...

What frightens me about this idea is that most governments are quite nasty and getting nastier, and will use international law as a pretext for repression, which is already starting to happen.

We see something similar with Euro-washing where laws can be passed in the EU against the will of the electorate in every member country. We also see it with international attempts to protect religions (thus protecting religious despots) from honest criticism.

Without enforceable international law, one country can remain an oasis of freedom and therefore be (a) a thorn in the side of those countries which become police states and (b) a beacon of hope for the citizens of such countries. In addition, a free country provides something for nasty countries to be compared with by their own people.

We need an ongoing beauty contest between countries, not international law that permits them all to be equally ugly. International law in its present form is probably the least-bad way of achieving this.

Stephen said...

I think if you need a word for "what do you call international law that is enforceable in the courts of more than one country?" "International law" really would be quite appropriate.

For example a lot of EU legislation is directly applicable in all member states. Although very little of the EU's legal tradition really deals with military action in the middle east.

REH said...

International law may be chimerical when it comes to enforceability against States, but it's enforceable against State leaders. Once you've run the buggers to gorund, of course.