The irrevocable legacy of international law
UNDENIABLY, the more, the world heads to wards an enlightened horizon, the less, the international community is committed to delivering the writ of international law-the end all and be all of the UN Charter.
Given the significance of international law, the most pressing truth is that today’s world cannot afford to run without the semblance of international law.
The current International order demands a fair and judicious approach vis-à-vis the evolving efficacy of international law in global affairs.
Undeniably, an insight into global affairs suggests international law matters to a much wider range of actors. Precisely, international law is the law of nations — through which — the states regulate the conduct of their interstate relations.
Notably, numerous conventions/treaties, the utility of international law is equally important in matters relating to both war and peace.
Be it climate change or the nuclear disarmament challenge or be it the trade among the nations or the law of navigation, cyber crimes, or the conduct of communications.
The states cannot regulate their basic functions without committing themselves to the rules/ norms.
Treaties/conventions on internal law. But in the premise of territorial disputes, the intervention of international law becomes more profound and objective because, without its role, there could be a constant all time fear of engagement of wars among nations.
Yet truly, among the greatest achievements of the United Nations is the development of a body of international law, which is central to promoting settlement of disputes, economic and social development, as well as to advancing international peace and security.
As for the evolution of international law theory in the post-World War-II, first came the transformation —of the Treaty of Rome from an inter-state agreement to— set of rules enforceable by individuals through national courts throughout the European Community.
Then came the development of the GATT into the WTO, with automatically binding panel decisions that determine whether a state is violating international trading rules, generally through the subsidy of some corporation or other, and whether other states can retaliate. Substantially, international law has a twin-nature perspective.
First, is “inter-governmental” law; while the second being “trans-governmental or transnational law’’ (the core of the European community law) — rules, codes of conduct and cooperative agreements reached not by states but by parts of states — courts, regulatory agencies and even legislators.
Veritably, the traditional actor in the international system has been the unitary state; while today we witness the European state being disaggregated into its component government institutions.
Therefore, EU’s national courts normally refer cases involving questions of European law brought by individual or corporate plaintiffs to the European Court of Justice.
In NAFTA, an individual plaintiff or a government defendant dissatisfied with an arbitral judgment can contest that judgment in national courts.
And, as noted above, under the ICC, the jurisdiction of the international tribunal will only be triggered if the prosecutor and a panel of international judges determine that national authorities have been “unable or unwilling” to prosecute a suspected perpetrator of war crimes, crimes against humanity, or genocide.
In addition, regulation of the economy and deprivation of liberty for crimes committed against public order: these are two core powers that a polity reluctantly cedes to a sovereign in a mythical social contract.
They are powers traditionally wielded only by national governments, but today, in certain limited areas, they have been delegated to genuine supranational authorities.
These authorities have direct or nearly direct relationships with individual social actors, and through those actors, with national government institutions—forming the rules via the supranational and intergovernmental mechanism.
Though the governmental networks increasingly exchange information and coordinate activity to combat global crime and address common problems on a global scale, they are unable to make law, per se: they have no formal standing in the international system and cannot conclude binding agreements.
But they do adopt codes of best practices, conclude memoranda of understanding (MoUs), and legitimate various national rules and principles over other national rules and principles via soft law.
The post-Cold War era witnessed the mushrooming of non-state actors in international life, from multinational financial institutions and corporations, who had been there for decades, but who became the primary players in a rapidly emerging global economy, to non-governmental organizations of every description.
And yet, the post 9/11 world ushered in a new era of economic terrorism via money laundering, which is the processing of assets generated by criminal activity to obscure the link between the funds and their illegal origins.
Terrorism financing raises money to support terrorist activities. While these two phenomena differ in many ways, they often exploit the same vulnerabilities in financial systems that allow for an inappropriate level of anonymity and opacity in carrying out transactions.
The role of the IMF-controlled FATF has become increasingly predominant in today’s international relations, but sadly the FATF forum lacks an even-handed approach in its review.
Further, the Security Council takes the lead in determining the existence of a threat to the peace or an act of aggression.
It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement.
Under Chapter VII of the Charter, the Security Council can take enforcement measures to maintain or restore international peace and security.
Such measures range from economic sanctions to international military action. The Council also establishes UN Peacekeeping Operations and Special Political Missions.
Undeniably, the peaceful settlement of global disputes remains the fundamental task of the UN. Yet sadly, the global powers have undermined the core of international law.
Although the role of the United Nations is organically gaining its strength, a revitalization in the scope of UNSC peace diplomacy has become the order of the day.
In this regard, the two important global disputes, the Israeli- Palestinian conflict, and the Kashmir dispute, must be resolved by taking into consideration the basic dynamics of international law within the ambit of International Human Rights Law (IHRL) and International Humanitarian Law (IHL).
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.
