ADDRESSING AMERICAN SOCIETY OF INTERNATIONAL LAW, DEPUTY SECRETARY-GENERAL SAYS NATIONS MUST SHOW WILL TO TAKE COLLECTIVE ACTION IN GLOBAL INTEREST19990330 Unless That Happens, Rule Of International Law Sure to Remain Imperfect at Best
Following is the text of an address made on Friday, 26 March, by Deputy Secretary-General Louise Fréchette to the American Society of International Law, in Washington, D.C.:
I must say it is quite unnerving to see so many international lawyers gathered together in one place. If a stray asteroid were to destroy this building in the next five minutes, I fear the community of international lawyers would be much the poorer.
The question is, would anybody notice?
That may seem an ungracious question for an honoured guest to ask, but I'm afraid it is what you should expect when you invite a non-lawyer to address you.
Of course, I would notice. The United Nations would notice. In time, the rest of the world might come to realize what it had lost. But as things stand, few people outside your profession understand what international law is, or indeed how much of it there is.
In a national context, there are legislative bodies to make law, courts to interpret it and police to enforce it. But in the international order, there is no clearly identified legislative body and no regular method of enforcement. There are courts, but their jurisdiction is very narrowly defined.
* Press Releases DSG/SM/41 of 22 February and DSG/SM/42 of 23 February should have been DSG/SM/42 and DSG/SM/43, respectively.
But then, we should remember that national societies have not always been perfect examples of legal order, either. The history of most States is a history of alternation between extremes of disorder and of arbitrary power. Even today there are all too many countries where those seem to be the only alternatives.
Those societies which do enjoy the rule of law today have reached it by an itinerary stretching over hundreds of years. I expect many of you saw the recent article in The Wall Street Journal on the establishment of the rule of law, "first in one or two countries, then in many", as being one of the "significant trends of the past 1,000 years".
The heroes of that article -- at first sight an unlikely trio -- were Pope Gregory VII, King Henry II of England and the framers of the American Constitution. But the author went on to say that "what we have seen in the last century, first with the League of Nations, then with the United Nations and its associated bodies, is the attempt to create a global rule of law". This process, like its predecessor, he added, "is going to be a long, difficult and occasionally bloody struggle". But his conclusion was that "the rule of law throughout our planet is likely to be among the achievements of the third millennium, as its establishment nationally was of the second".
That was quite an encouraging thing to read, particularly in a newspaper and from an author -- the British historian Paul Johnson - who are not always in the front rank of United Nations supporters.
Indeed, compared to domestic law, international law is still in its infancy. But it already has a history, and it is growing.
This year we celebrate three important anniversaries. One hundred years ago, at the first Hague Peace Conference, the great Powers of the time, alarmed by the destructive force of the weapons they were developing, sought to agree on principles that would prevent them from being used.
Given the carnage that was soon to follow, we can hardly call their effort a success. But for the first time one particular weapon - the dum-dum bullet - was outlawed, beginning a process which has led to bans on other particularly unpleasant weapons, such as chemical and biological ones. Also for the first time, an institution was set up to administer international law -- in the admittedly modest form of the Permanent Court of Arbitration.
Fifty years ago, the four Geneva Conventions were signed - undoubtedly the most comprehensive attempt that has ever been made to codify jus in bello -- to define, that is, a minimum standard of conduct to be observed between human beings even when the "final argument" of military force is invoked.
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While no one could claim that the Conventions have been uniformly observed, they have at least become widely known and accepted as the norm by which the behaviour of belligerents should be judged.
And 10 years ago came the Convention on the Rights of the Child - the first Convention to combine articles of human rights with provisions of international humanitarian and refugee law. This and other treaties -- from the Genocide Convention of 1948 to the 1979 Convention on the Elimination of All Forms of Discrimination against Women - form an impressive body of international human rights law which gives legally binding form to the principles set out in the Universal Declaration.
Thanks to them, individuals in almost all parts of the world are endowed with a comprehensive framework of rights, which, in theory at least, their governments are bound to respect. Practice is often very different - I shall come to that point later - but in seeking to improve practice one should not underestimate the value of having an agreed set of rules from which to start.
So we find that there have been many advances in international law. Thanks to the work of the United Nations, there are now thousands of multilateral treaties dealing not only with inter-State relations but also with individual rights, covering virtually every field of human endeavour.
This process of codification has enabled many newly independent countries, which otherwise might have regarded international law as a European concept foisted upon them by their former colonial masters, to have a share in its formulation and so to accept that it exists also for their benefit.
Probably not many people outside this room are aware that this is the last year of the United Nations Decade of International Law, designated as such by the General Assembly. The Decade has seen the adoption of new international conventions on subjects as diverse as disarmament, human rights, narcotics and terrorism.
The entry into force this month of the Ottawa Convention banning antipersonnel landmines is particularly gratifying. Although it was not negotiated under a United Nations mandate, the Secretary-General encouraged the process and is the official depositary of the Convention. I personally look forward to attending the first conference of States parties in early May. It will be held, appropriately enough, in Maputo, capital of Mozambique - a country which has suffered greatly from the scourge of landmines, and where the United Nations, having helped bring about a political settlement, is now helping with the slow and painful work of mine clearance.
We have also seen at least a start in the development of international criminal justice, with the two Tribunals for Rwanda and the former Yugoslavia.
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A grim but important milestone was passed last year when Jean-Paul Akayesu became the first person ever found guilty of the crime of genocide by an international tribunal. More broadly, the judgements of the two Tribunals have served to clarify and develop some key aspects of international humanitarian law. Encouraged by these achievements, the Secretary-General last week decided to endorse the recommendation of an expert panel that the tribunal to deal with the crimes committed by the Khmer Rouge in Cambodia should have an international character. I hope that the Cambodian Government may yet be persuaded to follow this advice, in the letter and in the spirit.
But of course we all look forward to the day, I hope not too far off, when ad hoc tribunals will no longer be necessary, because there will be a permanent International Criminal Court to deal with grave crimes against humanity. The adoption of the Court's Statute last July was rightly hailed by the Secretary-General as "a giant step forward in the march towards universal human rights and the rule of law".
Seventy-eight states have now signed the Statute. One - Senegal - has already ratified it, and others have embarked on the ratification process. The Preparatory Commission has also started work. But we all realize that the Court will be less effective if it does not have the full support and participation of all the permanent members of the Security Council, and in particular of the United States.
The work of legislation is by no means finished - and probably never will be. From international crime to the illicit transfer of small arms, there is still a need for tighter regulation. And we will no doubt continue to need new rules to deal with the consequences of new technology, whether it be the cloning of human beings or certain forms of electronic commerce.
But I believe the most difficult challenges lie elsewhere. The first is to ensure universal acceptance of the legal instruments we so painfully negotiate. The second is to ensure actual compliance with the norms set out in those instruments.
As I said earlier, there are literally thousands of treaties and conventions on the books. But too many States hang back from ratifying them, with the result that they either do not enter into force or are only applied in a limited number of countries. Let me give you some examples:
Between 1963 and 1997, no fewer than 11 conventions were adopted within the United Nations system to deal with different aspects of the fight against international terrorism. But while the first three of these, which all concern the safety of aircraft, now have more than 160 States parties, the take-up rate on the more recent ones has been disappointingly low. Less than
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40 States have so far ratified or acceded to the two 1988 Conventions on unlawful acts against the safety of maritime navigation, and of fixed platforms located on the continental shelf. The 1991 Convention on the marking of plastic explosives for the purpose of detection is not faring any better. And only three states have yet ratified the Convention on Terrorist Bombing adopted in 1997, although 43 have signed it.
Our joy over the entry into force of the Land Mines Convention is considerably mitigated by the fact that only 68 states are so far parties to it, and these do not include several major landmine producing and exporting countries.
The Comprehensive Nuclear-Test-Ban Treaty, concluded in 1996, has been signed by 152 States, but so far ratified by only 31. It cannot enter into force until certain named States have joined it, including India and Pakistan.
I should add that the United States has yet to ratify two of the important human rights instruments which I mentioned earlier - the Convention on the Elimination of All Forms of Discrimination against Women, to which 163 other States are parties, and the Convention on the Rights of the Child. It is surely a great anomaly that this country should find itself one of only two among the 185 Member States of the United Nations not to have ratified the latter document. (The other, as you probably know, is Somalia.) It would be good indeed if the Senate could bring itself to celebrate the anniversary by repairing this sad omission.
And finally, let me mention one other treaty of particular concern to the United Nations: the 1994 Convention on the Safety of United Nations and Associated Personnel. This entered into force in January this year, but so far has only 43 signatories and a meagre 23 parties. I hope no one sees our concern with that treaty as narrowly self-obsessed. Let me remind you that peacekeepers and other United Nations personnel are sent into harm's way not for their own benefit but in the service of humanity and world peace. Their safety should therefore be the first concern of Member States, and I am frankly shocked that ratifying this Convention is not given greater priority.
All these conventions were drafted with great attention to detail, in the knowledge or expectation that they would have a real impact on the lives of people all over the world. You, as international lawyers, have an important role to play in persuading your governments and legislatures to sign and ratify them. No one underestimates the difficulty of this task, but equally you should not underestimate the power of your own advocacy. Success in this endeavour would be a fitting achievement, not only for the Decade of International Law but for the closing year of the millennium.
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The second challenge is perhaps the greatest: to ensure that all these instruments, once ratified, are actually implemented. Too often they are not observed, and there is no one to enforce them.
The general public do not have the impression of living in a world ruled by law, and they are right. There are too many areas where the performance of governments falls far short of what they have pledged and legally bound themselves to do.
I can't avoid mentioning here the failure of the United States to honour its international obligations and pay the arrears it owes to the United Nations. But rest assured that I do not intend to devote the rest of my speech to that issue.
I will simply echo the words of seven former United States Secretaries of State who said last week, in a remarkable joint statement, that this "great nation is squandering its moral authority, leadership and influence in the world".
Respect for human rights around the world is not nearly as impressive as the number of conventions in force would lead one to believe. Indeed, some of the worst offenders are party to the full range of human rights conventions. Internal mechanisms to ensure compliance remain relatively weak, and standards are not applied consistently. Too often, it seems, the appointment of special rapporteurs or the adoption of resolutions criticizing a government's human rights record, depends less on the objective situation than on the international leverage which that government, or its friends and allies, are able to apply.
The perception of a double standard is widespread, and it fatally undermines the message of "all human rights for all", which the United Nations is trying so hard to get across.
And then, how much can we really afford to cheer about the progress of international criminal justice? Do I need to remind you that the two most prominent persons indicted by the Tribunal for the former Yugoslavia - Radovan Karadzic and Ratko Mladic - are still at large? What is more, they are known to be living in a country currently administered by a high representative of the international community, and occupied by a substantial international military force. Until these two men are brought to answer the charges against them, we cannot really substantiate our claim to have ended the culture of impunity.
We have witnessed in recent years an alarming erosion of respect for humanitarian norms, including those codified in the Geneva Conventions.
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In too many of today's conflicts, the combatants do not content themselves with riding rough-shod over the civilian population, ignoring its safety: they actively target it, using rape, pillage, torture, massacre and forced displacement of civilians as methods for achieving their objectives.
Not only peacekeepers but also humanitarian workers -- including those of the International Red Cross, famed for their scrupulous neutrality and refusal to carry weapons - are now almost routinely targeted.
Why should this be so? The reasons are complex, but one of them stares us in the face -- and it brings me back to my starting-point: the weak enforcement mechanisms in support of international law. Each sovereign State has the responsibility to apply and enforce international law on its own territory. So who can enforce it when the State is itself delinquent, or where it has lost control of all or part of its territory?
The Charter of the United Nations deals with this issue clearly, in cases of direct aggression by one State against another. And in 1990, when Iraq occupied Kuwait, the international community surprised itself by the firmness and rapidity with which it acted. But almost all the conflicts the United Nations has been wrestling with since then are internal conflicts.
Many of them do involve the armed forces of other States, and almost all of them result in the displacement of refugees across international borders. But almost invariably citizens of the same State are to be found fighting each other in significant numbers. And in such cases the Charter gives us much less clear guidance.
On the one hand, Article 2.7 forbids the United Nations to intervene "in matters which are essentially within the domestic jurisdiction of any State". On the other, the elaboration of international norms derived from the Charter, especially in the area of human rights, has made it more and more difficult to justify a rigorous non-intervention policy.
The Genocide Convention, for instance, puts all States under an obligation to "prevent and punish" this most heinous of crimes. It also allows them to "call upon the competent organs of the United Nations" to take action for this purpose. And since genocide is often committed with the connivance, if not the direct participation, of State authorities, it is hard to see how it could be prevented without intervening in a State's internal affairs.
The Charter is concerned with the welfare of peoples. As the Secretary- General remarked last year, "it was never meant as a licence for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power".
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But if there is to be intervention, who is to do it? More important still, who is to decide when it should be done? The obvious answer is the Security Council, to which the Charter clearly assigns the primary responsibility for maintaining international peace and security. But the Council itself at present seems unclear, or divided, about the extent of its powers and responsibilities when faced with an intra-State conflict.
In the case of the Kosovo conflict, which we are now witnessing, there were very strong arguments for intervention, but no consensus among the permanent members of the Council. Given that each of them has a veto, that meant it was impossible for the Council to act. That in turn has led some Member States to argue, at least implicitly, that in cases of grave humanitarian emergency there is a higher law giving them not only a right but a duty to intervene, without waiting for authorization by the Council. In other words, they argue that the Charter cannot, or should not, be construed as preventing them from doing what's right.
Mentalities have evolved since 1945, to the point where such concepts as State sovereignty and the power of veto seem anachronistic to some, while to others they remain the keystone of international order. This week there was a lot of international support for the effort to save Kosovo's Albanian population from mass killing and mass displacement. And yet all of us can see the danger of treating international law à la carte. Can we really afford to let each State or group of States be the judge of its own right, or duty, to intervene in another's internal conflict?
Most of us would prefer, I think, to see such decisions taken collectively, by an international institution whose authority is generally respected. And most of us would wish to see the Security Council as such a body.
But there is a further problem. Even when the members of the Council agree on what they want to do, they seem to have increasing difficulty in imposing respect for their decisions on the rest of the world. Its appeals are too often ignored and its threats seem to have limited impact on parties intent on waging war. Arms embargoes, a standard Security Council tool, are shamelessly flouted as weapons pour into conflict zones, apparently unrestrained.
During this decade, economic sanctions, under Article 41 of the Charter, have become the Council's weapon of choice. But in the last year or two we have seen an increasingly open and widespread questioning of the Council's moral right to impose such sanctions, which are perceived as unfairly penalizing the people of the targeted States, yet ineffective in altering their government's behaviour. Particularly troubling was the decision taken last year by the Organization of African Unity that its members should no
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longer enforce the sanctions imposed by the Council on Libya. If the Council no longer commands world respect, and comes to be seen as irrelevant or marginalized, we shall all find ourselves living in a more dangerous world. How can it rebuild its authority?
Until the nations of this world, and especially the most powerful among them, show that they have the political will to take collective action in the global interest, rather than concerning themselves only with their own narrow self-interest and their immediate neighbourhoods, the rule of international law is sure to remain very imperfect, at best.
Yet if States do not live by international law, they are condemned to live by the law of the jungle. That cannot be in the interest of even the greatest Power on earth - for all power has its limits, both in time and in space. Least of all, I submit, can it be in the interest of a great democracy, which in its domestic arrangements is surely the most firmly attached to the rule of law of all Powers known to history.
The predominant influence of such a great democracy in today's international order should be seen as a great chance for humanity, and for the American people themselves, to establish the rule of law on a global scale. Ladies and gentlemen, it will be tragic indeed if the chance is not seized.
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