The Jessup International Law Competition is a simulation of a fictional dispute between countries before the International Court of Justice (ICJ). Such programmes are part of the vast reservoir of soft power which America has. I also take it as symbolic of the vision of their most inspirational founding father, George Washington, to live in a world governed by the rule of law. He said, “Observe good faith and justice towards all Nations; cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be, that good policy does not equally enjoin it? It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence.”
Such events are organised among the students of law to apprise them of the importance of the international law with an underlying message that the disputes between nations should be settled through law by the ICJ. This is an occasion when, as young students of law, you may like to remind yourself of the bitter lessons learnt during the last two great wars and of what it means if disputes between nations are not settled peacefully and in accord with the Charter of the United Nations. Article 33 of the Charter, inter alia, mandates the states that in settling their disputes they should “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
There are today several pending disputes at the regional and international level which have been allowed to fester at the altar of politics. No wonder the ominous bells of another great war are ringing.
According to The Economist, the Pentagon has issued a new national strategy that has put China and Russia above jihadism as the main threat to the United States. Britain’s Chief of General Staff warned of a Russian attack last month. A serious armed conflict between the US and North Korea cannot be ruled out. These irritants to peace are reflective of a serious rule of law deficit at the international level. No major power is fully kosher so far as compliance with the law in the international arena is concerned, particularly when it comes to their national interest. However, if one looks at China’s track record, the attribute of “jihadi” about it may not be a fair comment to make.
Because in the last seven decades and now with its One-Belt-One-Road initiative stretching over 68 countries, it has concentrated more on economic development and playing a larger role in the global affairs. It is currently the largest goods’ partner with the US and the US goods’ trade deficit with China last year was over $350 billion. China, therefore, has stakes in maintaining world peace. There is an ancient Chinese saying, “A belligerent nation is doomed to perish”.
In a telling comment Judge Xue Hanquin, my illustrious fellow judge at the International Court of Justice, has elaborated China’s view of the role of international law in the contemporary age when she said, “China is fully aware that in promoting world peace, justice and development, international law has acquired special significance for the developing countries, as the discipline has now become an extraordinarily powerful language in which to frame problems, suggest fault and responsibility, propose solutions and remedies. International law rules matter and must be taken seriously. It is simply a distinctive style of argumentation but has serious consequences for how ordinary people live.”
The regional conflicts, non-resolution of politically explosive disputes between states and the unabated arms race are not only reflective of certain deficiencies of the rule of law regime but also a culture of impunity having multiple facets. These are serious threats to the foundational pillars of the international order which the US and the free world created after the Second World War; universal human rights, democracy and the rule of law. All the major powers in the UN Security Council need to play their role in averting another World War by removing some of the major fault lines in the international law regime.
First is the temptation of some states to rewrite the rules. Although since the advent of the UN a third world war has been averted and the regional conflicts have not escalated into bigger wars, power politics and the temptation of some states to rewrite the rules has at times trumped the mandate of the UN charter when it came to prevent a unilateral attack on another state. This has encouraged states to ignore the Security Council resolutions and the international law. The disputes and irritants which threaten world peace are reflective of non-compliance with international law.
Second, accountability and the rule of law: the modern definitions of the rule of law imply that all persons must be accountable to the law, that is, face the social and legal consequences of their violating the law. Indeed if the rule of law is to have any real social function, the social actors must have the obligation to abide by it and society must be able to hold them accountable. From the public international law point of view, the International Court of Justice is the only jurisdiction with general competence over issues of international law. However, its limitation is the lack of compulsory jurisdiction which undermines its credibility as an accountability mechanism in the international order. Moreover, it is confined only to the domain of civil disputes.
(To be concluded)
Published in The Express Tribune, February 23rd, 2018.
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