University of Queensland Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Queensland Law Journal |
|
VINCENT P BANTZ, RACHEL BAIRD AND ANTHONY E CASSIMATIS[*]
Any social body goes through a series of changes at various points in time. At the very least, these changes will be responsive, prompted by the modifications in the immediate environment of the social body itself. At a more integrated level, the social body may undertake to design changes which will, in turn, affect its broader environment. These patterns of interactions are well-known to the theorists of international systems. Changes in the international organization, however, pose issues that are more challenging. The United Nations was founded in 1945 upon the determination of the peoples of the world to unite their strength to achieve very noble purposes.[1] The United Nations was not only entrusted with the mission to stabilize or perfect the then-existing international order; it was also directed to achieve a kind of international cooperation that was deemed to be all-embracing, to mark a departure from the Westphalian order, the passage from a society of juxtaposition to a society of cooperation, a kind of candid international federalism à la Kant.[2] The United Nations was expressly designed under Article 1, Paragraph 4 of the Charter, to be a ‘centre for harmonizing the actions of nations in the attainment of these common ends’. The International Court of Justice (the principal judicial organ of the United Nations) even recognised the international personality of the United Nations on the ground that it was more than that: it was a centre with organs, special tasks and duties which position the Organization in detachment from its members.[3] Although it was never envisaged that the United Nations was to absorb all international relations, it was certainly to structure them and, if need be, to police them through a system of world security, not only ‘collective’ security.[4]
Although the immediate environment of the United Nations is sovereign States, membership of the United Nations is composed of the same sovereign States.[5] It is thus conceptually, if not logically, difficult to suggest any pattern of relationship between the United Nations and its environment that isolates one from the other. Certainly, the United Nations does not exhaust the entire international legal order but from its universalism of membership and purposes naturally flows its vocation to sustain all internationally relevant normative proposals of a certain magnitude. If we follow Judge Abi-Saab in considering a law of legal physics the rule which dictates that to each level of normative density there corresponds a certain level of institutional density necessary to sustain the norms,[6] the normative expression of the overarching structure of the international community would in turn reflect the level of organisation of that very community. The relationship between the United Nations and its members, therefore, has to be identified not only by its nature, but also by its purpose. Today, one of the most dramatic aspects of the issue, and probably the most fundamental, seeks to identify how the United Nations, if it still purports to be the organised international community, fulfils its function of norm producer, peace guarantor and order promoter. For the realists, the question of international organisation was not so much its effectiveness but rather its usefulness; the role of international organisations would be reckoned according to the advantages they bring to hegemons in a game theory grandeur nature. In a contemporary world lavishly shaped by theories of multilateralism and liberal institutionalism, the issue is not so much how the United Nations structures or organises States’ practices, but how it can generate order. The question of international organisation then becomes one of its legitimacy. The morphology of this order, in a way, matters less than its content.
If justice should legitimize order, order should certainly guarantee justice.[7] For the United Nations, order and justice surely go together in the realisation of a peace of collaboration. Within States, a just norm and a legal norm generally partake in the construction and protection of civil peace. Between States, even if international law is different from international morality, international law remains the main vehicle of international normativity (or behavioural predicate). In classic international relations justice was never a structuring element of order and coherence, be it a consequence of the success, in practice, of positivists over natural lawyers, or a consequence of the nature of civil peace in international relations, traditionally limited to the absence of war. However the United Nations Charter, by organising international dealings, did more than shape the international order: it gave it a direction towards ‘common ends’. In its 1997 report entitled ‘Renewing the United Nations: A Programme for Reform’, the Secretary-General expressed this clearly: ‘The greatest source of strength enjoyed by the United Nations stems from its universality of membership and the comprehensive scope of its mandate. And the most encompassing manifestation of this strength is in the normative realm. Norms that approach universality form a principled basis on which to assess and guide practice within the community of nations. Such norms have not only a moral import; they also provide the institutional underpinnings of daily life within the international community’.[8]
States can conveniently be characterised as groups pursuing a social purpose of a general nature.[9] As an international organisation the United Nations is, it is true, limited by the principle of speciality: its purposes are broad, indeed, but neither they nor the powers conferred to effectuate them are unlimited.[10] It remains that, in the case of the United Nations, it is the nature of these purposes, rather than their magnitude, which makes its vocation unique. World peace and multilateral international cooperation are not aims that can be better achieved by the United Nations; they can only be achieved by the United Nations. The question, now more than ever, is to know which order and which justice prevail in the world community, and who will look after their promotion and transformation.
If the question is worth posing now more than ever, it probably is because the challenges of today, as will be seen below, are not only multilateral; they are multifaceted. The formative era of the international community is the era of sovereignty. Sovereignty is the fabric of international relations: without sovereignty, the international community vanishes into a global empire.[11] Whereas sovereignty remains fundamentally relevant to the international order, it does not mean that States remain the legitimate survival units, and if they do not, it is critical to know whether the organised international community is relevant at all. As sovereign States are also the members of the organised community, and as the organised community purports to be the generator and guarantor of the overall international order, the problems are interrelated. In terms of efficiency, the United Nations has shown with some success that one can have an international legal system without a centralised legislative power and a legislative intent without a legislative content.[12] In terms of legitimacy, the monopoly of the United Nations in the realm of peace and security under chapter VII of the Charter is a two-edged sword: the order that the United Nations creates is dependent upon the means it has to defend it. If the law in that field is what the United Nations through its Security Council says it is (with limited, or incidental, powers of review), contradictory actions become illegitimate actions, the crimes of Professor Kelsen’s gang of robbers, even when they purport to foster and not to unravel the established order.[13] The organised international community has been witnessing unilateral armed interventions, whether individual or collective, that are truly reminiscent of an order based on power politics in the style of the Concert of Europe, an order which, whatever its effectiveness, has been replaced by the concept of sovereign equality of states and the centralisation of the use of force which arguably only admits the exception of self-defence.[14] The risk is to see peace and security treated by individual members as exhaustible resources and used inequitably. But when the United Nations does not say what the law is, the risk is a developing discrepancy between what is and what we think should be. Similarly, the norm-producing function of the United Nations cannot produce legitimate effects if it unfolds outside of a general theory of sources of international law. A specialised organ (the Security Council) specifically designed to represent the world community to guarantee peace and security is not in the best position to determine the values underpinning peace and security when this task is devolved upon the organised international community at large. Absence of ambiguity is a fundamental predicate in that field.
Any social body goes through a series of changes. The United Nations is no exception. For instance, it will be recalled that the well-publicised Special Committee on the Charter of the United Nations was created as an ad hoc committee in 1974, and then established a year later.[15] In 1992, the Secretary-General’s own Agenda for Peace recognised the changing international context (the environment of the United Nations) with the collapse of ideological barriers, accompanied unfortunately by new dimensions of insecurity and global challenges.[16] The tone however is optimistic and marshals a determined plan for world peace based on diplomacy, peace-keeping, peace-making and peace-building to be monitored by a resurrected Security Council.[17] This plan, however, required ‘a sense of confidence that the world Organization will react swiftly, surely and impartially and that it will not be debilitated by political opportunism or by administrative or financial inadequacy’.[18] The 1995 Supplement to the Agenda for Peace, however, had seen a United Nations stupefied by violent crises that it could not prevent or remedy. The mood is different and acknowledges the ‘perceived shortcomings in the United Nations performance of the tasks entrusted to it’.[19] Even the neat model of conflict prevention and peace enforcement had suffered some serious genetic modifications, as the role and powers of peace-keeping forces, particularly in situations of internal conflicts, had posed new challenges.
With a new Secretary-General, a new tone is set. His first comprehensive report is described, in the letter of transmittal to the president of the General Assembly, to contain the most extensive and far-reaching reforms in the fifty-two year history of the United Nations. Immediately, a ‘sizeable gap between aspiration and accomplishment’ was identified.[20] Perhaps the most revolutionary aspect of this new era of reforms is the acknowledgement that the United Nations, in some respects, is more than the sum of its members; it can not only develop its own logic, but also its own shortcomings. While the Cold War had clearly proved, if need be, that the United Nations could be blocked by its own members, the following period had shown that the United Nations could be blocked by its own machinery. The plan becomes to create a ‘new leadership culture and management structure at the United Nations’.[21] The Secretary-General has thus identified urgent proposals ranging from better rationalisation of the agenda of the General Assembly, a clarification of the mandate of United Nations organs and specialised agencies,[22] a reform of the Secretariat through smaller, better trained, more versatile, more mobile staff and an effective system of internal oversight. The latter issue apparently revealed so many shortcomings that the latest report on ‘Measures to strengthen accountability at the United Nations’ embodies rules ranging from personal financial liability of staff, fraud and corruption prevention, and incorporation of ethics into staff training.[23] One of the most haunting conclusions of the report is that ‘the vision of the Charter of a workable system of collective security has yet to be fully realised’.[24] This, in large part, may stem from the fact that enormous demands were placed on a United Nations that is equipped with inappropriate means.[25] This, however, cannot simply mean that States only get the United Nations they deserve. Interestingly, the Secretary-General recommends that the United Nations focus on the activities it does better than others.[26] These core activities are identified as peace and security, economic and social affairs, development, humanitarian affairs and human rights, each carrying with it a number of suggested reforms.[27] It will remain to be seen whether a shift in priorities that appears rather dramatic[28] will lead to better results. This is important: how are the failures of the United Nations to be identified? According to the Charter objectives, the expectations of Member States, or of the United Nations itself? How do we judge a failure? With a crisis, a series of major crises, or a deeply entrenched distrust for the Organization? If, according to Professor Henkin, international law is applied and respected by most States most of the time,[29] can it be said that such distrust comes less from breaches of international law or inability to sanction them than from the very content of international law?
This year marks a particular landmark in this period of reform proposals. In March 2005, the Secretary-General issued a report entitled ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ that draws on his eight years at the United Nations, as well as on his own conscience and convictions.[30] In an age of terrorism and instability, he strongly reaffirms the enduring relevance of the Charter in the lives of men and women.[31] The Report is clearly inspired by the recognition of an intimate correspondence between the United Nations and its members: the challenges facing the United Nations are the same as those facing States and only strong States can support a strong United Nations, which in return can perform the missions that States entrusted to it. The Report builds on the goals set by the Millennium Assembly in 2000,[32] stressing in particular debt sustainability and development assistance. There is, however, a higher normative proposal: if the rule of law constitutes the overarching structure of the international community (and, incidentally, also encompasses practices and institutions to guarantee the rule of law), the primary raison d’être of States and their duty is said to be the protection of their citizens.[33] If States fail in this high mission, ‘then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help to protect the human rights and well-being of civilian populations’.[34] We find here, clearly stated, both the nature and content of the international order: it is an order based on cooperation and reciprocal rights and duties of States and the organised community. The purpose of this alliance is the well-being of individuals.[35] In that context, peace is not a situation that one maintains or breaches; peace in itself is a fundamental legal norm to achieve, a kind of Grundnorm for the international community. The problem then is not only the outlawing of war, for unless it becomes a law of nature, any legal rule can be breached. The issue is also the reduction of the risks of conflicts.[36] A peaceful international community is not only a community free from war; it is a community based on principles that are referred to as ‘democracy’.[37]
A few months before this report was released, a High-Level Panel on Threats, Challenges and Changes, convened at the request of the Secretary-General, issued its own report.[38] It provides an illuminating background to the Secretary-General’s own report. In a lucid way, it acknowledges that many States face crises of State capacity and legitimacy and that, in a post-September 11 era, both States and collective security institutions have failed to keep pace with changes in the nature of threats.[39] To answer these threats, the report emphatically ushers in the mutual duties of States and the United Nations that are endorsed in the 2005 Report.[40] For the panel, an overhaul of collective security means the practical establishment of an equitable system of collective security.[41] This involves the clear definition of the legal norms at stake; in that regard, the panel recommends for instance a clear-cut circumscription of cases where force can be used and a definition of terrorism.[42] This also involves qualitative assessments of the implementation of norms (more targeted sanctions) and an unconditional abidance by all the rules. The panel notes with discerning disappointment that superpowers have ‘rarely sought Security Council approval for their actions … What is at stake is a relatively new emerging norm, one that is precious but not yet deep-rooted’.[43] This, in turn, involves a modification of the composition of the Security-Council that enhances its representativeness and, thus, its credibility. The problem had been on the agenda since 1992.
Folk tradition claims that the test of the pudding is in the eating. Very soon the world will know whether these far-reaching proposals receive the endorsement of the Member States. To mark the 60th Anniversary of the United Nations, the heads of States and governments gathered at a World Summit in September 2005 in New York. It should not be underestimated that the Member States of the United Nations reaffirmed their ‘faith in the United Nations’.[44] In some respects, they gave warm support to some of the above-mentioned proposals. In particular, they recognised that although it is for each State to protect its population against serious human rights violations, the international community also bears a responsibility in the field; the Security Council may, on a case-by-case basis, act under chapter VII of the Charter when ‘peaceful means and national authorities are manifestly failing’.[45] One may see here the emergence of a principle of subsidiarity. If we follow the European Union’s experience, this would mean that the international community will, in an area of shared responsibilities, act when the objective cannot be sufficiently achieved by a State alone and when it can better be achieved by the international community.[46] The Summit also endorsed concrete proposals such as the need for a comprehensive convention on terrorism, the establishment of a peace-building commission and the creation of an initial operating capability for a standing force in peace-keeping.[47] Member States, however, felt it necessary to affirm that there is no single model for democracy.[48] Respect for sovereignty means respect for the internal expression of that sovereignty which however, far from being unlimited as classical writers professed, shares ‘common features’ between States.[49] But is this common ground solid enough to avoid Samuel Huntington’s clash of civilisations?[50] The Summit was very conscious of the problem since it committed itself to promoting a dialogue among civilisations, welcoming the Alliance of Civilisations initiative launched in 2005 by the Secretary-General.[51] Allied civilisations, though, do not necessarily mean ‘United Nations’.
Out of these troubled times … a new world order can emerge: a new era—freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace. An era in which the nations of the world, East and West, North and South, can prosper and live in harmony. A hundred generations have searched for this elusive path to peace, while a thousand wars raged across the span of human endeavour. Today that new world is struggling to be born, a world quite different from the one we’ve known. A world where the rule of law supplants the rule of the jungle. A world in which nations recognize the shared responsibility for freedom and justice. A world where the strong respect the rights of the weak.[52]
Few statements capture better the optimism that followed immediately after the end of the Cold War. Various factors no doubt contributed to this optimism. The end of the Cold War meant that, for the first time since the 1950s, the collective security mechanism contained in Chapter VII of the UN Charter was operating largely as its drafters had intended. Iraqi aggression against Kuwait was being resisted by the UN Security Council, which was now free from the shackles of Cold War rivalry.
The collapse of communism in Eastern Europe justified optimism that the rule of law ideal would now be affirmed not just in Western Europe and in the United States. Support for the rule of law ideal in national legal systems, both Western and Eastern, provided encouragement for those who saw the rule of law not just as a feature of particular national systems of law, but also as a supra-national concept.[53]
Finally, these words of President George HW Bush, leader of the sole superpower, were no doubt a source of comfort and optimism for many outside of the United States. Was not the President of the United States promising that the strong would protect the rights of the weak? The United States, a ‘law-state’[54] committed to the rule of law internally,[55] appeared committed to the rule of law internationally.
This optimism, which in many ways was still apparent at the time of the UN’s 50th anniversary, has, by the UN’s 60th anniversary, greatly diminished, although it has not entirely disappeared. Tragedies in Somalia, Rwanda and the former Yugoslavia did much to shake confidence in multi-lateral responses to international crises. The terrorist attacks of 11 September 2001 were initially followed by international solidarity with the United States.[56] That solidarity weakened with the war in Afghanistan and was shattered by the war in Iraq in 2003. The UN Security Council, at the centre of the military response to the Iraqi invasion of Kuwait in 1990, was, by 2003, wracked by division and was unable to agree on the appropriate response to Iraqi non-compliance with its international legal obligations and was eventually by-passed by the United States and its allies.
The World Summit Outcome document adopted by representatives of the member States of the UN that gathered in New York in September 2005 reflects this complex picture. As already noted, the outcome document reaffirms the faith of member States in the United Nations system. At the same time the outcome document implicitly acknowledges the need to ‘enhance the relevance, effectiveness, efficiency, accountability and credibility of the United Nations system’.[57] Areas for future improvement can readily be characterised as areas of current weakness! A sense of urgency (and of frustration) is apparent in the Secretary-General’s address to the World Summit.[58]
In terms of the rule of law and the relationship between the strong and the weak, the National Defense Strategy of the United States of America of March 2005 provides a startling contrast between the policies of the US in 1990 and its policies in 2005. Under the heading of US ‘Vulnerabilities’ the following statement appears in the 2005 Defense Strategy: ‘Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.’[59]
A careful reading of the above statement reveals possible ambiguity as to its meaning.[60] Grounds for disquiet nonetheless remain. Similarly, an examination of the relevance of the rule of law ideal in international relations reveals a picture of uncertainty and complexity.
If one accepts Professor HLA Hart’s conclusion that ‘international law’ can properly be characterised as law,[61] then consideration of the rule of law ideal at the international level appears to raise similar issues to those raised by the ideal considered in a national context.[62] The rule of law appears to be an ‘essentially contestable’ concept[63] in the international sphere in much the same way that it is said to be in national political discourse. As has been eloquently demonstrated by Professor Waldron, however, this contestability does not undermine the value of theoretical debates regarding the rule of law ideal.[64] Debates regarding the rule of law in the international sphere include arguments relating to whether the concept is narrow and formalistic, or broader, including, for example, concerns regarding equality and other human rights.[65]
Professor James Crawford has identified two distinct ways in which the rule of law ideal has relevance within the international legal system.[66] The first relates to the way in which international law is used to reinforce and on occasion institute the rule of law within States.[67] Illustrations of this phenomenon would be those international instruments requiring national systems of law to operate in a transparent manner and to provide certain procedural safeguards.[68]
The second way in which the rule of law ideal operates internationally is, according to Professor Crawford, the way in which the ideal can be applied directly to international legal standards and international institutions.[69]
Thus, for example, the member States of the UN in 1970 acknowledged ‘…the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’.[70]
Professor Crawford considers the following elements to be the core of the rule of Law:
first, the absence of arbitrary power; second, general non-retrospectivity; third, the subjection of government to general laws, whatever their content; fourth, the independence of the judiciary, which must be ‘established by law’.[71]
Sir Arthur Watts[72]
and Professor Brownlie[73] have offered similar catalogues.
Professor Crawford contends that these elements are of relevance to international standards and institutions. He specifically criticises the conclusion reached by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia at the jurisdictional stage of the Tadic litigation[74] that a principle of international law applicable to national courts had no application to the Yugoslav tribunal.[75]
Specific concerns regarding the rule of law have been raised in relation to the Security Council. Indeed, notwithstanding the optimism surrounding the 50th anniversary of the United Nations, Professor Brownlie, in a course of lectures organised in celebration of this anniversary, complained that the Security Council, in its resolutions on Iraq and Libya in the early 1990s, had acted contrary to accepted international standards.[76]
More generally Professor Brownlie raised concerns regarding the ‘long-familiar problem of the application of double standards by political organs of the United Nations’.[77]
Given the focus upon the Security Council in the current negotiations on UN reform it is worthwhile considering, from the perspective of the rule of law, a recent and important development in the practice of the Security Council. In two resolutions of the Council addressing threats of terrorism (financing[78] and proliferation of weapons of mass destruction[79]) the Security Council has purported to set general standards for the international community and has thus acted in an essentially legislative fashion.
Given the limited membership of the Security Council and the veto rights of the permanent members it is not surprising that concerns have been raised regarding the legitimacy of the Security Council extending its activities beyond those of an executive character to include legislative action. However, an attack on the legitimacy of such a development cannot meaningfully be distinguished from a criticism of the exercise of more traditional executive functions by the Council. As Stefan Talmon has observed:
… a patently unrepresentative and undemocratic body such as the Council is arguably unsuitable for international lawmaking. However, this objection, although valid, could also be made to any other Council action. It can hardly be maintained that authorizing the use of force requires less democratic legitimacy than imposing an obligation to prevent and suppress the financing of terrorist acts.[80]
The rule of law ideal can, by contrast, provide a distinct and powerful basis upon which to criticise the manner in which this legislative role of the Security Council has operated in practice. In particular, concerns have been raised regarding the certainty and procedural fairness of legislative resolutions adopted by the Security Council. Stefan Talmon has noted that, unlike treaties, the drafting process of Security Council resolutions remains secret and therefore cannot generally assist in the interpretation of such resolutions.[81] This absence of transparency is of concern in relation to executive acts[82] but it is particularly problematic in relation to legislative acts, which by their very nature are of general application.
The lack of due process in the operation of procedures established by Security Council resolutions has been criticised by Professor Alvarez,[83] Professor Koskenniemi[84]
and by the UN itself.[85] The rule of law ideal again offers a valuable basis for analysing the operation of UN organs and the standards adopted by such organs.
Professor Crawford observes that the ‘United States these days appears to apply the policy: international law for others and not for itself.’[86]
This assessment, which, for example, is illustrated by the US Government’s approach to the exercise of jurisdiction over those alleged to have committed international crimes,[87] has obvious rule of law implications.
A defence of US practice might point to two discrete areas. The first is international trade law and the system of dispute resolution under the WTO Agreement. The US has consistently supported the development of what is essentially compulsory jurisdiction on a global scale in relation to trade disputes. Arguably what one finds in international law are ‘enclaves of the rule of law in international affairs’.[88]
International trade law may be such an enclave.[89] One might question, however, whether the very existence of such enclaves seriously undermines the rule of law ideal at the international level. How, for example, could the existence of such enclaves be reconciled with objections to arbitrariness and the commitment to consistency at the core of the rule of law ideal? Whereas international relations scholars appear to be able to accommodate conceptually the existence of hermetically sealed regimes governing, for example, international trade, human rights and arms control,[90] most international lawyers, faithful to the rule of law ideal, appear opposed to such a possibility.[91]
The second topic that the US might raise is the responsibility of other members of the Security Council who veto or obstruct measures genuinely required in order to secure international peace and security. Perhaps the clearest example of this was the threatened Russian veto of the proposed resolution authorising military action in relation to repression in Kosovo in 1999. The issues are complex. Competing considerations were eloquently described by Sir Arthur Watts in 1993 (ie,well before the NATO military action in Kosovo and the US lead invasion of Iraq):
A self-assumed enforcement role is a prerogative of powerful States, seldom capable of being used against them; yet the rule of law must apply to all States, and may even be more important vis à vis powerful States than in relation to those which are small and weak. Such a self-assumed role may be an understandable response to the absence of other effective international action within the prevailing international legal framework, but impatience, and even outrage, have more to do with the springs of policy than with the rule of law. … The transition from the establishment of international order by the hegemonic power of one State, or a few States, to the full establishment of the international rule of law is a still-continuing process. Pending its completion, the needs of the international order probably make inevitable the continuing reliance by the international community on the exercise by a few States of the effective power which only they possess. So long as those States are mindful of the value of the international rule of law the international community can continue its gradual progress towards a fully effective rule of law, which must remain one of its ultimate objectives.[92]
Professor Jeremy Waldron has asserted that the ‘lead idea of the Rule of Law is that somehow respect for law can take the edge off human political power, making it less objectionable, less dangerous, more benign and more respectful.’[93]
It is difficult not to conclude that much of the scepticism regarding fundamental principles of international law[94] and assertions regarding the ‘exceptionalism’ of the US[95]
are opportunistic attempts by US-based lawyers and politicians to avoid the restraints on exercises of US power that the rule of law ideal necessarily entails. The future development of the United Nations is tied to the manner in which US power is exercised and whether the US is ‘mindful of the value of the international rule of law’. But it also appears to depend on how other States respond to international challenges both within and outside the institutional framework of the United Nations.
This special edition is fortunate to have received individual contributions which shed light on these important issues.
The Honourable Justice Michael Kirby AC CMG of the High Court of Australia is, as is well known, no stranger to the international scene. In a very personal contribution, he enlightens the reader with his passionate faith in international law. He firmly believes that the United Nations plays a central role in the ‘formulation, declaration and implementation’ of international law. Noting the hopes which inspired the creation of the UN in 1945, he contrasts them with the ‘contemporary feeling of discouragement over international law’. For him, however, discouragement does not pay tribute to the concrete achievements that the international rule of law has brought to people’s lives. These achievements may not necessarily operate in the same way as domestic enforcement of the law. While referring to his experience as Special Representative of the UN for Human Rights in Cambodia, he remarks that public exposure and adverse reports are an important mechanism for the application of the rule of law in the international community. Before the rule of law is applied, though, it has to be adopted. One will read with great interest his insider’s report on the adoption by UNESCO in 2005 of the Universal Declaration on Bioethics and Human Rights. He notes that it is not, as such, a statement of international law. However, as with other important declarative statements adopted by a vast number of States, one can expect that it will foster further crystallisations of the world’s opinio juris and practice of States in the field. Those who enforce the law also deserve close scrutiny. The idealised sanctity of the judicial mission should not prevent us from raising concerns about the integrity and corruption of the judges themselves. Justice Kirby has an obvious interest in these issues and informs us of his activities as rapporteur of the Judicial Integrity Group convened by the United Nations Office on Drugs and Crime. In courts, too, international law performs a salutary mission. It is a widely-used principle of judicial interpretation to refer to international law to construe domestic legislation. Justice Kirby has ‘no doubt that the international law that has been built, and continues to be built, by the United Nations, will make an increasing mark on the perception that Australians have of their own law’.
Mr Peter Prove, Assistant for International Affairs and Human Rights to the General Secretary of the Lutheran World Federation (Geneva), notes that we are witnessing today one of the most comprehensive attempts to re-engineer the UN system. He mentions that the Report of the Secretary-General in 2005 picked up many, but not all, of the proposals made by the High-Level Panel, and that the former was welcomed by Australia. Focusing in great detail on the World Summit, he lucidly remarks that it was to deal with the credibility crisis of the United Nations but proved ‘disappointing at best, and a failure at worst’. In the words of the Secretary-General himself, however, the glass is only half empty. Member States linked for the first time peace, security, development and human rights, and the recognition of a ‘responsibility to protect’ is clearly described as important progress that is, however, likely to generate controversy. Other issues are more disconcerting. Mr Prove notes that the Summit failed to address the vexing issue of disarmament and non-proliferation and a consensus on both a clear definition of terrorism and Security Council reform is lacking. He also estimates that ‘the purpose and practical role of the Peacebuilding Commission was not sufficiently thought out before the decision to establish it’ and wonders whether the new Human Rights Council, endorsed at the Summit, would replace the current Commission on Human Rights. He remarks that the mandate, size and membership of the Council are left unknown. In the end, we might wonder with him whether ‘the members of the international community achieved enough at the Summit to restore each other’s confidence in their own common instrument’.
Professor Johan van der Vyver, of Emory University School of Law in the US, offers a very useful analysis of the contribution of the United Nations to international criminal law. The direct normative contribution is, of course, the adoption of conventions under the aegis of the United Nations. Though he notes with disappointment that many human rights treaties are only civil in nature, he acknowledges the great added value of conventions which criminalize conduct; many of which embody the principle ‘aut dedere aut judicare’ with the notable exception, though, of conventions on the protection of the environment. Turning to the development of international customary crimes and customary international criminal procedure he remarks that, after being marshalled by the Nuremberg Tribunal, these developments were crystallized by the United Nations and often embodied in declaratory resolutions or codification conventions and, notably, the Red-Cross conventions. One can note that, in the field, it is the practice and opinio juris of a community of States which formed the customary norms. At the institutional level, Professor van der Vyver recalls the historical development of international criminal tribunals and presents the ad hoc tribunals created by the Security Council, including challenges to the legality of their creation. He advances the view that there are ‘compelling grounds’ for holding that they were created ultra vires pursuant to Chapter VII of the UN Charter. However, he notes that the legitimate ends that the Council was pursuing would validate an evolutive interpretation of the Charter. One could certainly agree that ‘subsequent practice’ of UN organs has, indeed, been recognised as a way of Charter interpretation—not Charter amendment. Alternatively, one could remember that article 29 of the Charter itself enables the Security Council to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’. Professor van der Vyver also presents the International Criminal Court and notes the close relations it has with the United Nations, notably the Security Council, but concludes that, in the light of the juridical independence of the International Criminal Court, not even the Security Council could instruct it to disregard, for example, the principle of complementarity. In the last part of his contribution, Professor van der Vyver aptly enumerates basic principles of international criminal justice, notably the contours of the notion of due process. One can join him in concluding that ‘the ICC represents a massive step toward the ideal of putting an end to impunity and, thereby, to serve as a deterrent’.
Security can be generally defined as the condition of being protected from or not exposed to danger. When war-weary States signed up to the United Nations Charter in 1945, the Security Council was entrusted with primary responsibility for the maintenance of international peace and security.[96]
UN membership has almost quadrupled from the initial 51 founding members in 1945 to 191 member States in 2002. The world in which we live has evolved such that physical borders have been dismantled and people move with more freedom throughout the ‘global village’. Yet the issue of State security has demanded unprecedented attention from individual States and the international community, including the Security Council. The recent spike in terrorist activity stemming from the September 11 attack on the World Trade Centre and the Pentagon has prompted States (primarily led by the US) to revaluate questions of national security and to act unilaterally if domestic foreign policy and UN Security Council decisions diverge.
Included in this special edition of the Journal are two articles which address current developments in international law regarding national security. Mr Christopher Young, a Senior Legal Officer with the International Maritime Organization, examines the potential for conflict between the fundamental freedom of navigation on the high seas and the right of States to ensure security in offshore maritime zones. He achieves this through a detailed examination of the process of amendment to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.[97] The Legal Committee of the IMO (a specialised UN agency established to achieve safe, secure and efficient shipping on clean oceans) commenced consideration of amendments in early 2002. Fears that terrorism will manifest itself in the 21st century through maritime operations, whether through the carriage of weapons of mass destruction or the release of harmful substances into the marine environment, prompted the US led amendment proposals. The initial response to the proposals which sought enhanced at sea boarding powers at the expense of flag State authority, was that they were not in accordance with international law.
As Mr Young explains, the Legal Committee[98], through five sessions held over two years, guided the debate over the extension of boarding rights, based upon the inclusion of additional at sea offences, at the expense of flag State authority. Mr Young reports that it was generally accepted that the principle of flag State jurisdiction took precedence and that any boarding of a vessel by a third State is to be allowed only in ‘exceptional circumstances’. The emergence and firming of this view of the Committee becomes evident through the review of the Sessions in Mr Young’s article. Annex 5, which is the Revised Draft Article following the 88th Session of the Legal Committee (and the one submitted to the 89th Session), reflects this view of international law through the deletion of a sub-paragraph in paragraph 3 which authorised at sea boarding in the event of no response from the flag State to a request to confirm nationality of a vessel where the requesting party has ‘reasonable grounds to suspect the vessel, its cargo or a person on board, is, has been, or is about to be involved in the Commission of an offence under Article 3’ of the Convention.
A Diplomatic Conference was called by the IMO in October 2005 at which amendments to the Convention were formally adopted. Mr Young’s review of the amendment process provides insight on the current environment of perceived heightened security risks which has prompted States to seek extra-territorial powers of inspection and arrest. It also illustrates the formal processes facilitated by the UN, through which proposals seeking to alter significantly international law and concepts of individual State security, are to be debated, reviewed, considered and agreed upon by the international community.
Professor Donald Rothwell, Challis Professor of International Law at the University of Sydney, examines the issues of security through the emergence of the principle of anticipatory self defence in the new age of terrorism which shrouds international relations and law. He first examines the customary right to self defence enshrined in Article 51 of the UN Charter, which provides a limited exception to the rule against the use of force. The partial reliance upon the concept of anticipatory self defence by the US (and supporting States) to justify the use of force against Iraq in 2003 has raised numerous issues in international law and politics. Often politicians seek to employ the law to justify political decisions and in doing so muddy the distinction between what is lawful and what is clearly not.
In terms of the events surrounding the military operations against Afghanistan in 2001-2002 and Iraq in 2003, there are two significant legal issues. First, to what extent does the right of anticipatory self defence (assuming one accepts such a right exists at law) permit States to justify the use of force before it has sustained an armed attack; and second, whether this right can be invoked against non-State actors.
The Security Council resolutions of September 2001 would seem to support the existence of a right of anticipatory self defence against non-State actors in that the use of force against the Taliban in Afghanistan was sanctioned by the Council. Professor Rothwell reviews the events post September 11, including the Security Council resolutions, the advisory opinion of the International Court of Justice in the Israeli Wall Case[99] and State practice. Relevant State practice includes the Israeli bombing of Iraq to neutralise an incomplete nuclear reactor in 1986 and the US attack on Libya, which was justified on the basis that following a bomb explosion apparently directed at US servicemen, more attacks by Libya were planned.
In the new age of international terrorism the issue of national security has been at the forefront of many States’ foreign and domestic policies. The sanctity of State sovereignty and the rule against the use of force have been used to justify actions aimed at ensuring States (and their citizens) are ‘being protected from or not exposed to danger.’
Professor Rothwell then reviews the ongoing debates about the reform (and future) of the UN Security Council to ensure it can fulfil its function to address threats to international peace and security posed by terrorism. In light of the decision by the US led ‘Coalition of the Willing’ to use force against Iraq notwithstanding the absence of Security Council support, the role of the Security Council has been under intense scrutiny.
As already noted, in 2004 the report titled, A More Secure World: Our Shared responsibly was released by the UN High level Panel appointed by the UN Secretary General. This was followed closely by the Secretary-General’s own statement, In Larger Freedom: Towards Development, Security and Human Rights for all, in which he acknowledged the question of pre-emptive or anticipatory self defence has ‘deeply divided member States’. As noted by Professor Rothwell, the Secretary General concluded that the right of self defence as articulated in Article 51 includes the right of States to defend themselves from imminent attacks.
When one reads both articles it is clear that the international rule of law has profound significance for efforts to enhance international security. The need to constrain those States that may be inclined to act unilaterally in the guise of national security must be balanced against the responsibility of other States and international institutions for actions that increase the risk of unilateralism. The success of reform efforts and the survival of the UN itself appear to depend upon whether and how such a balance is struck.
Mr Vincent P Bantz, a Lecturer at the TC Beirne School of Law, scrutinises the latest judgment rendered by the International Tribunal of the Law of the Sea. In doing so, he seeks to disentangle the many complex issues raised by the prompt release proceedings established under the 1982 UN Convention on the Law of the Sea. These problems, particularly in Australia, are not only related to the dramatic contemporary concerns about illegal fishing, but they also raise difficult issues of treaty interpretation which, surprisingly, did not attract much attention among the negotiators of the Convention, or among academics. For the first time, the Tribunal had to articulate the relation between a coastal State’s domestic judgment to confiscate a vessel that was condemned for unlawful fishing and the duty of that State to release the vessel and its crew on bond until the merits are decided. Mr Bantz had previously suggested that only a final domestic decision on the merits would terminate the duty of prompt release, and the Tribunal upheld this view in the light of the fact that the decision had been appealed and suspended. However, Mr Bantz goes a step further and enquires whether a final decision will always extinguish the duty of prompt release on bond. While the Tribunal itself did not consider the issue, it considered that prompt release proceedings should include elementary considerations of humanity. The author suggests that this will also apply to final domestic decisions on the merits which precluded prompt release on bond when they are rendered without due process. Interestingly, his views are shared by Judges Mensah and Wolfrum, who in the past had expressed significant reservation against any possible intrusion into the coastal State’s appreciation of the merits. The inherent tension in prompt release proceedings is that the Tribunal cannot rule on the merits of the case and that a final judgment would normally terminate the duty of prompt release. Mr Bantz therefore suggests that the final decision to confiscate would ‘not be considered in itself but for its impact on the duty of prompt release’. He proposes that, for the purpose of international prompt release proceedings, a final domestic judgment of confiscation should not be recognised if it ‘manifestly and gravely violated the duty to provide for a due process that respects fundamental human rights’, that is, if it ‘did not give the right to prompt release a chance to be effectively claimed’. For the author, this will apply particularly when the flag State was not notified of the arrest of the vessel. It remains to be seen whether the Tribunal will follow the standards he suggests. Mr Bantz then considers the question of the determination of a reasonable bond by the Tribunal in the light of its past cases. He emphasises the role played by a seized cargo and notes that the Tribunal has not always been consistent in that respect. In the end though, the author does not share the critical views of those who demand more clarity in the fixing of the bond; while referring to the ‘intimate conviction’ of the international judges, Mr Bantz believes that it is the import of the international rule of law that matters, not a mathematical formula.
The focus of the contributions discussed above has been upon States. Non-State entities have not been the primary focus of attention. In the final contribution to the special edition, however, Ms Justine Nolan, a Lecturer and an Associate of the Australian Human Rights Centre at the University of New South Wales, provides an up-to-date assessment of efforts by the United Nations to increase cooperation with global business in order to advance the purposes and principles of the United Nations. Her analysis of the United Nations Global Compact highlights both the potential advantages and dangers involved in such increased cooperation. She draws an important distinction between concepts of responsibility and accountability and this distinction is central to her analysis of the tension inherent within the United Nations’ attempts to date to increase its cooperation with business. One apparent paradox that emerges from Ms Nolan’s analysis is that by increasing the emphasis on corporate accountability (and thus arguably ensuring fidelity to the rule of law ideal) the United Nations may at the same time undermine the support that transnational corporations have so far given to the Global Compact.
[*] TC Beirne School of Law, University of Queensland. Vincent Bantz wrote the first section of this introduction. The second section was written by Anthony Cassimatis. Rachel Baird, Vincent Bantz and Anthony Cassimatis wrote the third section.
[1] See Charter of the United Nations, preamble.
[2] Under art 1 of the Charter, the purposes of the United Nations are to maintain international peace and security, to develop friendly relations among nations, and to achieve international cooperation (emphasis added).
[3] Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178-179.
[4] See Charter of the United Nations, chapter VII and compare with arts 9 et seq of The Covenant of the League of Nations, opened for signature 28 June 1919, 1 Hudson 1 (entered into force 10 January 1920). In his Agenda for Peace, the UN Secretary-General noted that ‘[t]he nations and peoples of the United Nations are fortunate in a way that those of the League of Nations were not. We have been given a second chance to create the world of our Charter that they were denied’. [75] UN Doc A/47/277-S/2411 (1992).
[5] Charter of the United Nations, arts 3 and 4.
[6] See Georges Abi-Saab, ‘Cours général de droit international public’ (1987) 207 Recueil des cours de l’Académie de droit international 9, 95.
[7] What Professor Koskenniemi calls the ‘external relationship’ between the two concepts. See Martti Koskenniemi, ‘The Police and the Temple. Order, Justice and the UN: A Dialectical View’ (1995) 6 European Journal of International Law 325, 329.
[8] 51st sess, Agenda Item 168, [8] UN Doc A/51/950 (1997).
[9] See Emer de Vattel, The Law of Nations or the Principles of Natural Law (Charles Fenwick trans, 1916 ed) 3, and Louis Le Fur, Précis de droit international public (3rd ed) (1937) 69.
[10] Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 168. This, however, also means that the organisation can exercise its functions to their full extent. See Jurisdiction of the European Commission of the Danube between Galatz and Braila (Advisory Opinion) [1927] PCIJ Rep (ser B) No 14, 64.
[11] This was strongly reaffirmed this year by the Secretary-General in his Report entitled ‘In Larger Freedom: Towards Development, Security and Human Rights for All’: ‘Sovereign States are the basic and indispensable building blocks of the international system’. UN Doc A/59/2005 (2005), [19].
[12] Most UN General Assembly resolutions are, formally, only recommendations. Many of these, however, recommend nothing to nobody but embody strong normative proposals that States are bound, in the first instance at least, to consider in good faith. On that particular aspect, see the Separate Opinion of Judge Lauterpacht in Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (Advisory Opinion) [1955] ICJ Rep 67, 118-119. Professor Falk refers to the ‘functional operation as law’ of such norms. See Richard A Falk, ‘On the Quasi-Legislative Competence of the General Assembly’ (1966) 60 American Journal of International Law 782, 783.
[13] See Hans Kelsen, Pure Theory of Law (Max Knight trans, 1967 ed) 45.
[14] See Charter of the United Nations, art 51 and art 2(4) which directs Member States to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Professor Stone calls ‘the extreme view’ the position that advocates that use of force is permitted only in cases of collective or individual self-defence or pursuant to a decision by the United Nations. He does not deny that, ‘as a matter of exegesis’, the extreme view is possible, but questions ‘whether, even in terms of exegesis, it is the only possible, or even the more likely view’. See Julius Stone, Aggression and World Order (1958) 97. It will be noted that in 2001 Belarus and Russia submitted a proposal to the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organisation to request an advisory opinion from the International Court of Justice on the use of force when non authorised by the Security Council and when not in exercise of self-defence. UN Doc A/AC.182/L.104/Rev.2.
[15] Need to consider suggestions regarding the review of the Charter of the United Nations, GA Res 3349, 29th sess, 2323rd plen mtg, UN Doc A/3349 (XXIX) (1974) and Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, GA Res 3499, UN GAOR, 30th sess, 2440th plen mtg, UN Doc A/3499 (XXX) (1975).
[16] UN Doc A/47/277-S/24111 (1992), [9] et seq.
[17] ‘The contrast between the costs of United Nations peace-keeping and the costs of the alternative, war—between the demands of the Organization and the means provided to meet them—would be farcical were the consequences not so damaging to global stability and the credibility of the Organization’. Ibid [48].
[18] Ibid [83].
[19] UN Doc A/50/60-S/1995/1 (3 January 1995), [25]. The UN make-up, however, is only partly smudged: ‘Experience has shown that the greatest obstacle to success in these endeavours is not, as is widely supposed, lack of information, analytical capacity or ideas for United Nations initiatives. Success is often blocked at the outset by the reluctance of one or other of the parties to accept United Nations help’. Ibid [27].
[20] UN Doc A/51/950 (1997), [4].
[21] Ibid [6]. ‘[C]ertain of its organizational features have tended to become fragmented, duplicative and rigid, in some areas ineffective, in others superfluous’. Ibid [12]. An item entitled ‘Review of the efficiency of the administrative and financial functioning of the United Nations’ had been on the agenda of the General Assembly since 1986.
[22] Including the ‘creation of a new judicial body that would strengthen significantly the rule of law’. Ibid [81].
[23] Report of the Secretary-General, Measures to strengthen accountability at the United Nations, 60th sess, Provisional Agenda Items 122 and 123, UN Doc A/60/312 (2005). This report responds to General Assembly resolution 59/272 of 23 December 2004 in which the Assembly requested the Secretary-General to submit an annual report to it on measures to strengthen accountability in the Secretariat. It appears that the candidness of international civil servants had been dramatically overestimated.
[24] UN Doc A/51/950 (1997), [109].
[25] Ibid [14].
[26] Ibid [22].
[27] Ibid [62] et seq. In the field of peace and security in particular, it will be mentioned that the Secretary-General convened a high-level panel in 2000 to undertake a review of UN peace and security activities. The panel notably recommended a clearer definition of powers of peacekeeping forces and the development of standby agreements with Member States for a rapid deployment capacity. See Identical letters dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council, 55th sess, Provisional Agenga Item 87, [48-64], [86] et seq, UN Doc A/55/305- S/2000/809 (2000). The panel’s report, interestingly, notes that the United Nations is the sum of its parts and the Member States must recognise that the primary responsibility for reform lies with them. On the other hand, it also recognises that there is a normal resistance to change in any bureaucracy. Ibid [266-268].
[28] The Charter does not identify core activities, but core purposes.
[29] See Louis Henkin, How Nations Behave (1979) 47.
[30] UN Doc A/59/2005 (2005), [4]. In 2002, the Secretary-General issued a report entitled ‘Strengthening of the United Nations: An Agenda for Further Change’. 55th sess, Provisional Agenda Item 53, UN Doc A/57/387 (2002). He claims that since 1997 there have been some important achievements, not the least being the Millennium Declaration which serves as a common policy framework for the entire UN system.
[31] Ibid [8], [14]. However, he warns that if we do not reach a consensus on these issues ‘this year and start to act on it, we may not have another chance. This year, if ever, we must transform the United Nations into the effective instrument for preventing conflict that it was always meant to be’. Ibid [83].
[32] See the Report of the Secretary General Kofi A Annan, We the Peoples: The Role of the United Nations in the 21st Century, UN Doc A/54/2000, (2000).
[33] UN Doc A/59/2005 (2005), [135].
[34] Ibid. In particular, the Security Council may decide to take enforcement action.
[35] Professor Scelle, fifty years ago, wrote that there is no difference in the nature of domestic and international societies: both are societies of individuals. See Georges Scelle, Manuel de droit international public (1948) 18-19.
[36] For the question of the risks of war see UN Doc A/59/2005 (2005), [106]. In particular, the Secretary-General suggests a new global strategy against terrorism, including a comprehensive convention and a definition of terrorism, as well as the creation of a special rapporteur on the compatibility of counter terrorism measures with international human rights laws. Ibid [84], [91], [94]. An intergovernmental Peace-Building Commission should also be set up. Ibid [114].
[37] The Report suggests the creation of a democracy fund to assist countries seeking to establish or strengthen their democracy. Ibid [151]. The Report does not define democracy but refers to ‘representative democracy’. Ibid [149]. The so-called Seoul Plan of Action had defined the elements of democracy, at least for UN purposes, as follows: ‘Respect for human rights—civil, political, economic, social and cultural—including freedom of expression, freedom of the press and freedom of religion and conscience; access to and free exercise of power in accordance with the rule of law; the holding of periodic free and fair elections based on secret balloting and universal suffrage monitored by independent election authorities; freedom of association including the right to form independent political parties; separation of powers, especially an independent judiciary; and constitutional subordination of all State institutions, including the military, to the legally-constituted civilian society’. UN Doc A/57/618, Annex 1 (19 November 2002).
[38] Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change, A More Secure World: Our shared responsibility, UN Doc A/59/565 (2004).
[39] Ibid [5], [16].
[40] See ibid [29]. For the panel, this is ‘an emerging norm’. Ibid [203]. The panel considered that use of force by the Security Council should be assessed according to whether there is a serious threat of harm to the State or human security. In the case of internal threats, use of force would be justified in cases of genocide and other large scale killing, ethnic cleansing or serious violations of international humanitarian law. Force should be used as a last resort. Ibid [207].
[41] That is, a credible system that provides security for all its members, without regard to the nature of would-be beneficiaries, their location, resources and relationship to great powers. The panel admitted that it was ‘struck once again by the glacial speed at which our institutions have responded to massive human rights violations in Darfur’. Ibid [40], [42].
[42] On the definition of terrorism, see ibid [164]. The panel considered that an imminent threat can justify a use of force in self-defence under art 51 of the Charter as a pre-emptive measure. The Secretary-General endorsed these views in 2005 by claiming that ‘lawyers have long recognised’ this. UN Doc A/59/2005 (21 March 2005), [124]. However, a preventive measure corresponds to a non-imminent threat and should only be authorised by the Security Council. UN Doc A/59/565 (2004), [188] et seq.
[43] UN Doc A/59/565 (2004), [82].
[44] UN Doc A/60/L.1 (2005), [2]. This was qualified by urging the Secretary-General to ensure that the highest standards of efficiency, competence and integrity shall be paramount. Ibid [161]. An external audit of the UN was requested. Ibid [164]. The Secretary-General has pledged implementation of these demands in his report of 25 October 2005. Report of the Secretary-General, Implementation of decisions from the 2005 World Summit Outcome for action by the Secretary-General, GAOR, 60th sess, Agenda Items 46 and 120, UN Doc A/60/430.
[45] Ibid [138-139].
[46] See Protocol on the Application of the Principles of Subsidiarity and Proportionality [1997] OJ C 340/01, 105 and Treaty establishing the European Community [2002] OJ C 325/33, 41 (art 5). The International Court of Justice had declared that there are obligations of a State towards the international community as a whole. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 32. After lengthy debates, the International Law Commission adopted draft articles on responsibility of States for internationally wrongful acts in which it recognises the capacity of a State to invoke the responsibility of a State in case of a breach by that State of an international obligation owed to the international community as a whole. See UN Doc A/56/10, chap. IV.E.1, arts 42 and 48. The World Summit appears to have endorsed, at least as an aspiration if not an emerging norm, the parallel responsibilities of States towards the international community (duty to protect and duty not to commit serious violations) and of the organised international community towards States and populations (subsidiary duty to protect and duty to prevent or repair serious violations). When use of force is involved, right of action belongs to the organised international community as a whole, represented in the Security Council, not just any State.
[47] UN Doc A/60/L.1 (2005), [83], [89], [97]. The peace-building commission, however, should act on the basis of consensus. It is interesting to note that the Summit considered that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace. Ibid [79].
[48] Ibid [135].
[49] Ibid [135]. These common features are not described.
[50] See Samuel P Huntington, ‘The Clash of Civilizations?’ (1993) 72(3) Foreign Affairs 22.
[51] UN Doc A/60/L.1 (2005), [144].
[52] President George HW Bush, ‘Address Before a Joint Session of Congress on the Persian Gulf Crisis and the Federal Budget Deficit, 11 September 1990’ (1990) 26(37) Weekly Compilation of Presidential Documents 1358, 1359.
[53] See, for example, Norman S Marsh, ‘The Rule of Law as a Supra-National Concept’ in AG Guest (ed), Oxford Essays in Jurisprudence: A Collaborative Work (1961) 223. Professor Jeremy Waldron observed in 1989 that ‘theorists of the rule of law should be more interested than they are in the idea of ius gentium’: Waldron, ‘The Rule of Law in Contemporary Liberal Theory’ (1989) 2(1) Ratio Juris 79, 92.
[54] Philip Allott, ‘The True Function of Law in the International Community’ (1997-1998) 5 Indiana Journal of Global Legal Studies 391, 392.
[55] ‘The rule of law is as marked a feature of the United States as of England’: AV Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1927) 196.
[56] John F Murphy, The United States and the Rule of Law in International Affairs (2004) 167-168.
[57] UN Doc A/60/L.1 (2005), [15].
[58] Available at <http://www.un.org/News/Press/docs/2005/sgsm10090.doc.htm> , visited on 8 November 2005.
[59] National Defense Strategy of the United States of America, 1 March 2005, 5, available at <http://www.defenselink.mil/news/Mar2005/d20050318nds2.pdf> , visited on 7 November 2005.
[60] The statement has a more benign connotation if the ‘and’ is construed as being strictly conjunctive.
[61] HLA Hart, The Concept of Law (2nd ed, 1994) Chapter X. Contrast John R Bolton, ‘Is There Really “Law” in International Affairs?’ (2000) 10 Transnational Law and Contemporary Problems 1 (written when Ambassador Bolton was Senior Vice President of the American Enterprise Institute). Bolton’s position would plainly be that the rule of law is irrelevant to international relations due to the absence of legal obligations. Thus those on the political right and left might doubt the value of the rule of law ideal in international relations, but for quite different reasons. Professor Horwitz summarised objections to the rule of law offered by those on the political left in the following manner: the rule of law ‘undoubtedly restrains power, but it also prevents power’s benevolent exercise. It creates formal equality—a not inconsiderable virtue—but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations’: Morton J Horwitz, ‘Book Review—The Rule of Law: An Unqualified Human Good?’ (1976-1977) 86 Yale Law Journal 561, 566 [emphasis in original]. In relation to the arguments advanced by Bolton against the legal character of ‘international law’, in addition to the concerns raised by Professor Hart, it appears relevant to contrast the complete absence of formal State endorsement of such arguments.
[62] There may, however, be some important differences. Sir Arthur Watts, for example, in his consideration of the international rule of law opined that the concern addressed in municipal conceptions of the rule of law regarding the protection of rights of individuals as against government authorities was difficult to transpose to the international plane. He did, however, also acknowledge that as ‘the status of individuals as subjects of international law increases’, so an exclusively inter-State conception of the international rule of law would have to be adjusted: Watts, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15, 21 and n 37.
[63] Richard H Fallon Jr ‘“The Rule of Law” as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law Review 1, 7.
[64] Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137, 148-164.
[65] See, for example, Professor Charlesworth’s comment on Professor Crawford’s discussion of international law and the rule of law: Hilary Charlesworth, ‘Comment’ [2003] AdelLawRw 3; (2003) 24 Adelaide Law Review 13, 14. Note Professor Craig’s argument that advocates of more substantive conceptions of the rule of law are required to articulate the political theories underpinning their conceptions: Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467. A very influential defence of a formalist conception of the rule of law is Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195. Compare Raz’s broader discussion in ‘The Politics of the Rule of Law’ in Raz, Ethics in the Public Domain (1994) 354.
[66] James Crawford, ‘International Law and the Rule of Law’ [2003] AdelLawRw 2; (2003) 24 Adelaide Law Review 3, 7-10.
[67] Ibid 7-8.
[68] Consider, for example, provisions of the Agreement Establishing the World Trade Organization such as Article X of the General Agreement on Tariffs and Trade 1994 or various articles of the Agreement on Technical Barriers to Trade or the Agreement on Sanitary and Phytosanitary Measures, reprinted in World Trade Organization, The Legal Texts—Results of the Uruguay Round of Multilateral Trade Negotiations (1999).
[69] Crawford, above n 66, 8-10.
[70] See the 4th preambular paragraph of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), GA OR, 25th sess, Supp No 28, 121, UN Doc A/5217 (1970) [emphasis added]. Compare the World Summit Outcome, UN Doc A/60/L.1 (2005), [134].
[72] Sir Arthur Watts suggests four elements ‘which are necessary if the rule of law is to obtain in the international community’. He suggests that there may be other elements but that the four that he identifies are ‘more fundamental’: 1. Completeness and certainty of the law; 2. Equality before the law; 3. Absence of arbitrary power; and 4. Effective application of the law: Watts, above n 62, 26-41.
[73] Professor Brownlie provides an ‘epitome of the rule of law’ comprising 5 key elements: ‘(1) Powers exercised by officials must be based upon authority conferred by law. (2) The law itself must conform to certain standards of justice, both substantive and procedural. (3) There must be a substantial separation of powers between the executive, the legislature and the judicial function. Whilst this separation is difficult to maintain in practice, it is at least accepted that a body determining facts and applying legal principles with dispositive effect, even if it is not constituted as a tribunal, should observe certain standards of procedural fairness. (4) The judiciary should not be subject to the control of the executive. (5) All legal persons are subject to rules of law which are applied on the basis of equality. To these elements offered above, it should be added that the Rule of Law implies the absence of wide discretionary powers in the Government which may encroach on personal liberty, rights of property or freedom of contract’: Ian Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations—General Course on Public International Law’ (1995-I) 255 Recueil des cours de l’Académie de droit international 9, 213.
[74] Prosecutor v Tadic (Jurisdiction), Appeals Chamber, 2 October 1995, (1997) 105 ILR 453, 471-476.
[75] Crawford, above n 66, 8-9. A similar point could be made in relation to the finding of the Yugoslav tribunal in the Dokmanović case on the issue of the legal consequences of the luring of an accused in order to secure an arrest: Prosecutor v Mrkšić, Radić, Šljivančanin and Dokmanović (Motion for Release), Trial Chamber, 22 October 1997, (1998) 111 ILR 458, 487, [67]. The approach of the Yugoslav tribunal in these cases can be contrasted with the views of the majority in the Arrest Warrant case that the functional immunity of a foreign minister from exercises of national court jurisdiction does not extend to immunity before an international court or tribunal: see Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3, [61].
[76] Brownlie, above n 73, 218-224. Compare the concerns regarding the Security Council raised by Professor Koskenniemi in 1995. See Koskenniemi, above n 7.
[77] Brownlie, above n 73, 211. Compare Andrea Bianchi, ‘Ad-hocism and the Rule of Law’ (2002) 13 European Journal of International Law 263.
[78] Threats to international peace and security caused by terrorist acts, SC Res 1373 (2001), UN SCOR, 4385th mtg, UN Doc S/RES/1373 (2001). Available at <http://www.un.org/Docs/scres/2001/-sc2001.htm> , visited on 8 November 2005.
[79] Non-proliferation of weapons of mass destruction, SC Res 1540 (2004), UN SCOR, 4956th mtg, UN Doc S/RES/1540 (2004). Available at <http://www.un.org/Docs/sc/unsc_resolutions04.html> , visited on 8 November 2005.
[80] Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law 175, 179 (footnotes not reproduced).
[81] Ibid 188-190.
[82] Compare, for example, the general right to reasons for administrative decisions provided under municipal legislation such as the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth).
[83] José E Alvarez, ‘Editorial Comments—Hegemonic International Law Revisited’ (2003) 97 American Journal of International Law 873, 874-878.
[84] Koskenniemi, above n 7, 344-346.
[85] See the second report of the Monitoring Group established pursuant to Security Council Resolution 1363 (2001) and extended by Resolution 1390 (2002), S/2002/1050, 20 September 2002. Compare the World Summit Outcome, UN Doc A/60/L.1 (2005), [9].
[86] Crawford, n 66, 8. See also Murphy, above n 56, and Alvarez, above n 83.
[87] The United States participated in the establishment and operation of the Nuremburg and other tribunals that tried individuals in relation to crimes committed during the Second World War. The US also supported the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda. Any principled objection by the US to the International Criminal Court’s jurisdiction appears to have been undermined by US acquiescence to the referral to the Court of the situation in Darfur in the Sudan: see Security Council Resolution 1593, adopted on 31 March 2005. Available at <http://www.un.org/-Docs/sc/unsc_resolutions05.htm> , visited on 8 November 2005.
[88] Crawford, above n 66, 12.
[89] Detlev F Vagts has observed that ‘[w]hile Bolton’s national security world may be rather free of rules, his colleague, Special Trade Representative Robert Zoellick, has to operate in the highly legalized universe of the World Trade Organization’: Vagts, ‘Editorial Comments—Hegemonic International Law’ (2001) 95 American Journal of International Law 843, 845.
[90] See, for example, Friedrich Kratochwil, ‘Contract and Regimes: Do Issue Specificity and Variations of Formality Matter?’ in Volker Rittberger (ed), Regime Theory and International Relations (1993) 73, 73-83.
[91] International lawyers have recognised the existence of ‘self-contained regimes’: see Bruno Simma, ‘Self-Contained Regimes’ (1985) 16 Netherlands Yearbook of International Law 111. These regimes, however, are generally considered to have important conceptual and practical links with general international law. For recent affirmations of the unity of international law, see the 2004 and 2005 reports of the International Law Commission’s Study Group on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, UN Docs A/CN.4/L.679, 29 July 2005; and A/CN.4/L663/Rev.1, 28 July 2004. For an opposing view, see Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2003-2004) 25 Michigan Journal of International Law 999.
[92] Watts, above n 62, 44-45.
[93] Waldron, above n 64, 159.
[94] See, for example, Professor Glennon’s attack on the concept of sovereign equality: Michael J Glennon, ‘Why the Security Council Failed’ (2003) 82(3) Foreign Affairs 16, 32.
[95] See, for example, Bolton, above n 61, 15-26.
[96] See Article 24(1) of the Charter of the United Nations.
[97] Opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992).
[98] An ad hoc Committee consisting of all member States to the IMO and empowered to deal with any legal matters within the scope of the IMO.
[99] Advisory opinion of the ICJ on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UQLawJl/2005/19.html