Challenging times for International Law

April 30, 2010
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By Hassan Aslam Shad & Taimur Malik

Published in the 24 July 2006 issue of The Nation.

This article takes a snapshot in time of the relevance of international law. It does so by taking the historic purposes of international law as the point of departure for floating the idea that international law must cater to the reality of contemporary times to be sufficient.

For long, international law or the law of nations was understood as the panacea for resolving inter-state disputes. Those who viewed international law through the lens of criticism could but quote a few instances of its absolute failure. However, even the biggest of its opponents could not criticize international law endlessly because there were no Iraqs, Afghanistans, September 11s or 7/7s for that matter.

The same is no longer true. A layman or a lawyer alike would rather paint a bleak picture of international law through the brush of the realities of ongoing armed conflicts to which international law has failed to put an end. A very important question naturally comes to mind: is international law living through challenging times? It is Indeed. Is it sufficient as it stands today? Yes and no.

Historically, international law has served two main purposes: it has provided a platform for like-minded states (the traditional subjects of international law) to resolve their disputes through mutual debate. Secondly, it has narrowed down exceptions to the use of force. Both these purposes constitute the moral underpinning of international law. Unfortunately, these very purposes continue to be cast in serious doubt by recent developments at the international level.

The reality of contemporary times continues be a challenge for international law. The scope of international law is no longer confined to states: it has expanded to subjects of international law such as insurgencies and terrorists (hereinafter “emerging subjects of international law”).

Consequently, “like-mindedness” as originally envisaged by international law could fail to provide working solutions for international law. “Like-mindedness” is a comforting triggering factor for states to agree on a dispute resolution framework. However, it is precisely just that. States are increasingly refusing to enter into negotiations with emerging subjects of international law on the pretext that they are opposed to civilization or that they do not share their vision of “like-mindedness”. Consequently, a disparity or grey area now exists between states and emerging subjects which is increasing by the day.

This disparity may partly be explained by sovereignty which is the jealously guarded claim by a state over its territory and existence. Sovereignty, in its nature, is opposed to claims by insurgents or terrorists. Historically, insurgencies, rebellions and terrorist acts have been dealt with an iron fist by states. The veil of sovereignty has been pierced by international law mostly in the backdrop of the collective will of the international community. Take the example of the United Nations Security Council authorized collective action against Iraq in 1990 in which the sovereignty of Iraq was negotiated to the collective will of the international community.

However, sovereignty does not and can never constitute the biggest threat to international law. In the opinion of the authors, the gravest threats to contemporary international law lie in (i) the non-recognition that the context of “like-mindedness” as originally envisaged is in a gradual state of transition, (ii) that emerging subjects of international law are now a reality of the times in which we live and, (iii) the belief of states and emerging subjects that power is the sole constitution of international law.

“Like-mindedness” explains the most essential percept of the earliest foundations of international law. “Like-mindedness” is conceptually grounded in the belief that “peace and mutual co-existence” is the right of every state in the world. States elevated themselves to a horizontal level of the status of “equals”. In line with the understanding that “equals cannot be treated unequally”, states identified themselves as equals in terms of their legal rights and obligations towards one another even if the political and economic influence that they held individually would change.

A potent manifestation of “like-mindedness” inherent in traditional international law is the United Nations (UN) created in 1945. Purposes of the UN included reaffirming the international rule of law, developing friendly relations among states and achieving international co-operation in solving disputes between states.

The greatest vision behind the creation of the UN lay in the resolve of the international community to provide a shock absorber when “like-mindedness” of states fell victim to disputes and differences. In other words, the shock-absorbing capabilities of the UN lay in providing a platform where states could agree to agree in future, if not right away and thus avoid confrontation.

The five decades of UN life and consequently the success of international law is viewed differently. Those who see the glass as half empty quote instances of the failure of the UN in providing solution to the Israel-Palestine dispute, putting an end to the Cold War, or in stopping the invasion of Iraq. Those who see the glass as half-full paint a picture in which a world without UN is shown hostage to chaos, with war as the rule and peace the exception. Both these views are tenable but fail to explain the reasons behind the inadequacy of international law in the present times.

The “like-mindedness” which was a founding feature of international law and the UN has inevitably failed to comprehend the reality posed by the emerging subjects of international law. In the past few years, notably after the tragic events of September 11, international law has been put to trial. The established principles of international law have been cast into doubt. It is increasingly being argued that they do not apply to emerging subjects.

It is a fallacy to assume so because when law and material reality collide, it is law that must accommodate. Insurgencies and terrorism are a reality. Concerted international efforts need to be made to finding solutions through dialogue and debate. Account should be taken of the political milieu passing through which emerging actors of international law have matured at the international level. Disputes between states and emerging subjects of international law must be addressed through a bi-lateral framework in which they are treated as the “new equals” in an evolved paradigm of “like-mindedness”.

International law needs to avoid the allegation that its constitution is grounded in power. This is crucial to the survival of international law. It can only be done when the salience and substance of the substratum of international legal rights and duties are extended to emerging subjects of international law. This is needed because deprivation fuels discontent and the resulting chaos that is so characteristic of armed conflicts.

Sense of ownership over international law is crucial to international dispute resolution. It is one thing to despise terrorist acts and quite another to rule out negotiations or dialogue with terrorists. The first is a corollary of humanity. The second of common sense and wisdom. Allowing emerging subjects of international law to benefit from international rights and guarantees would inculcate in them a sense of responsibility towards international law.

International law has taken centuries to evolve but could easily fall victim to power if reason does not evolve its journey with the changed circumstances. It is important for internationalists to grasp the ramifications of “change” introduced by emerging subjects of international law. Responses that have familiarity with reality would avoid misconstruing the purposes of international law. Fear of risking sympathy towards emerging subjects of international law must be discarded altogether and they must be allowed to generate their perspective in an environment of dialogue so that a culture of respect for international law can be nurtured for the 21st Century. Doing so would allow international law to be sufficient for our times.

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