Chapter 6
What international law does well
Law works best where it expresses aims and values that are already firmly and generally held throughout society—where its role is to formalize and order people’s behaviour, rather than to change it. The point is obvious, and no reason for disappointment. Little of the pain and misery in the world is the intended result of deliberate policies. Most results from lack of will, resources, or foresight.
There is an ambivalence in most reflection upon the state of international relations. On the one hand, there is the tendency to suppose that, as the Liberation theologians said, we must each drink from our own wells. People must fight for their own freedom and their own future, because outside intervention usually fails, and if it succeeds it generally leads to some new form of colonialism. What point is there in providing foreign aid, or in toppling a regime, if the country is so riddled with corruption and nepotism that the only result is to entrench another ghastly kleptocracy? What good is done by fighting to protect people from a government or insurgent regime if the protectors subsequently leave the country and it reverts to its previous condition? Why not let people get on quietly with their own lives? Why can we not cut the ties that bind us to foreign interests?
On the other hand, there is a more communitarian view. How can we leave terrorists to do their work in the Middle East, or disease to ravage African countries, when the dangers will soon arrive on our doorstep if they are not stopped? Would there be so much of a problem with people-trafficking and illegal migration if poverty and discrimination in the countries of origin were addressed? Cannot the burdens of addressing the problem of global warming be spread fairly between States?
International life is carried on between the extremes of isolationism and internationalism. We try to help our fellow human beings in some ways, at some times, and in some places; but we do not actually take overall responsibility for their welfare. Governments do help each other, but because they choose to and not because they feel obliged to do so: the first loyalty of a government is always to the people who could remove it or cut off its supply of money; and it is probably fair to say that if a foreign problem can be ignored, most governments will be inclined to ignore it. There is, nonetheless, a degree of international cooperation that may be surprising, and that raises the questions of the circumstances in which States choose to cooperate and the ways in which they do so.
The broad point is clear: States cooperate in making and applying international law in circumstances where they are agreed upon the goals to be pursued, so that the law is employed to express a willing cooperation between them rather than to force rules upon them. Indeed, perhaps the only rules of international law that can really be said to be imposed upon States against their will are peace treaties imposed by the victors (which have tended to give way in modern practice to more cooperative transitional arrangements between the entities concerned) and, at least arguably, the terms on which international bail-outs are made available to States staring into the abyss of bankruptcy. In other areas States agree, even if grudgingly in the face of domestic or international pressure, to enter into cooperative arrangements.
Why and how States cooperate
The mechanisms of agreement can take different forms. There are some matters on which all, or practically all, States genuinely take the same position. The idea that torture is unacceptable is an example. There may be differences as to what actually amounts to torture: the debates over water-boarding were the product of such differences. There may even be a mental reservation that would reluctantly regard torture as permissible as a last resort in an extreme situation such as the ‘ticking bomb’ scenario; and the list of States Parties to the UN Convention Against Torture certainly includes a number which are reputed to resort to torture. But no State will actually speak out in favour of maintaining a legal right for States routinely to engage in torture.
Then there are matters on which States do not particularly care what rule is adopted as long as there is a rule, in the way that within a State it is necessary to reach a decision, however arbitrary, on whether to drive on the right or the left of the road. There are many international agreements on technical standards, from the precise definition of a metre and a kilogram, and navigation rules and signalling codes for ships and aircraft, to labelling specifications for food and drugs, which illustrate this phenomenon.
There are also matters on which States do have firm views on what rule should be adopted, but nonetheless consider that it is better to have a compromise agreement on one rule rather than a free-for-all or a muddle of conflicting rules. Agreements between interested States to limit fish net sizes for conservation reasons, or to set design specifications for ships and aircraft that will be accepted as ‘safe’ by ports and airports worldwide, or to fix purity standards for food and drugs, are examples.
So, too, are the many conventions that harmonize national laws on various legal questions, such as the rules on the validity of wills and testamentary dispositions and on the validity of contracts: the acceptance of common rules makes it easier to give effect to legal transactions of individuals that have some international aspect. A familiar example is the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, which sets out agreed rules on matters such as the extent of the liability of airlines for lost or damaged luggage: the Warsaw Convention is commonly referred to on air tickets. This is the domain of private international law (or ‘the conflict of laws’, as it is often known). Private international law is the body of rules within each national legal system that determines which State’s civil laws apply to relations between private parties that have a ‘foreign’ element—for example, whether a marriage celebrated in Italy by a Scots man and an English woman is governed by Italian, Scots, or English law; or whether a contract between a US company and an Indian company to deliver goods and services to a project in Egypt is governed by the law of a US state, or of India, or of Egypt. Private international law focuses on the rights, duties, and powers of individuals under civil law, and is made up of rules within each system of national law. Public international law, in contrast, focuses on the rights, duties, and powers of States, and on the reach of their public power expressed in, for instance, their criminal and tax laws; and it is made up of rules of international law such as treaties and customary international law. Thus, each national legal system—English law, French law, etc.—has its own rules of private international law, but harmonizing treaties developed by organizations such as the UN Commission on International Trade Law (‘UNCITRAL’) and the Hague Conference on Private International Law are doing much to alleviate the practical problems that arise from differences between national laws which might lead to inconsistent answers to legal problems depending upon whose courts hear the dispute.
These examples indicate something of the considerations that tend to produce more international agreements in some fields than in others. Of course, there are intermediate cases, and other reasons for States to be keen to reach agreements; but the making of most international agreements reflects one or other of the circumstances described above.
Equally, the shared interests naturally tend to draw States into compliance with many of these agreements once made. Why, for instance, would a State wish to mislabel exported foodstuffs, knowing that routine checks would discover the fact and probably lead to the withdrawal of the goods from sale and to the refusal of the buyer to pay for them?
There are, however, circumstances where it may pay one State to break the agreed rules while others observe them. Limits on fish catches are an example. If everyone else observes the rules while State A does not, there is likely to be an increasingly healthy fish stock which benefits State A while it makes no contribution to the task of conservation and fishery management. This is the ‘free rider’ problem. State A takes the benefit: everyone else pays the price. The free rider problem is one reason why international standards have an inherent tendency to be rather lax. If standards are too strict, some States may not sign up to them at all. It is better to have standards that are loose enough for all the important participants in the activity to accept, so that all of the key States are at least bound by some standards, than to have stricter standards and find that some States refuse to accept them.
A final point on the reasons why States agree. Though it is sometimes thought that law should prohibit everything that is bad, most people realize that law is an exercise in the art of the possible. It is pointless laying down rules that cannot be complied with relatively easily. Environmental law offers a clear illustration. Universal agreement on a ban on the use of CFCs in aerosols was achieved in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer; but agreement on significant action to prevent climate change is elusive and still seems far off. Why? The answer is that the ban on CFCs was adopted only when commercially attractive alternative propellants were available to buyers, and manufacturers could switch to other products. While not wholly painless, the implementation of the ban was clearly both practicable and efficacious in serving the intended objectives of the ban. In the case of climate change, the costs of action are very high and would be unevenly distributed between States, and there is still doubt as to the efficacy of any particular measures. Finding a compromise is proving correspondingly difficult: it is easier to agree that something must be done than to agree precisely what it is, and when it shall be done, and by whom, and who will pick up the bill. Moreover, the action that would be necessary to implement any agreement would spread across the whole of social life—transport, energy, taxation, trade, urban planning, and so on—and is not within the remit of any single government department, so that it is correspondingly difficult for States to define their negotiating positions and to send negotiators with the authority to agree even to tentative compromises. As the UN Special Envoy for Climate Change put it after the 2014 Lima round of negotiations, there is enough progress ‘to keep the multilateral process alive, but not enough progress to give confidence that the world is ready to adopt an equitable and ambitious legally-binding climate agreement’.
Facilitating cooperation
The examples mentioned so far all envisage prescriptive agreements: that is, agreements to adopt rules or standards requiring people to do or not do certain things, to which the States Parties are bound to conform, whether it be the proper labelling of jam jars or the prohibition of torture or slavery. These are, however, not the only kinds of international cooperation. Some arrangements are facultative, and designed to facilitate transactions rather than to prescribe rules or standards.
Cooperation between legal systems is one example. There are treaties on the reciprocal recognition and enforcement of judgments, for instance, which ensure that a judgment given by a court in one State Party will be given effect by the courts of another as if it were one of their own judgments, and with a minimum of formalities required. Other conventions provide for the service of legal documents abroad, and for mutual assistance between States in the gathering of evidence for the pursuit of criminal matters and tax investigations, and for access to social security and medical assistance. The Council of Europe is particularly active in this field. Apart from the European Convention on Human Rights it has produced around 200 other treaties, all designed to facilitate ‘common action in economic, social, cultural, scientific, legal and administrative matters’. Specialized international bodies, such as the World Intellectual Property Organization and the World Health Organization, adopt treaties and other instruments within their own fields of action.
There are also arrangements that are focused on the provision of a forum for discussion, rather than on the laying down of the terms of a particular mechanism to address a problem of common concern. Thus, treaties establishing international organizations must be counted among the instances of international cooperation secured by international law.
The most obvious example is the United Nations. Its main function is simply to be there, rather than to do anything. It is the place where diplomats from around the world gather and can discuss anything that they choose. It is the site at which countless international understandings are arrived at and agreements and decisions on courses of action are made. The proportion of these that are ever recorded as resolutions, let alone as binding treaties, must be tiny: but the understandings and agreements are immensely important. No treaty is necessary to underpin coordinated military interventions such as the ‘coalitions of the willing’ that have been such a striking feature of the post-Cold War era, for instance.
The range of international organizations is enormous: the Brussels-based Union of International Associations (‘UIA’) lists over 66,000 of them, including dead and dormant bodies. Most (including the UIA itself) are non-governmental organizations, but there are upwards of 5,000 intergovernmental bodies. Many specialized international organizations admit States that are not (yet) Members of the UN itself. For instance, UNESCO—the UN Educational, Scientific and Cultural Organization—includes among its 195 Members Palestine and Niue, neither of which is yet a UN Member State. It is usual in international organizations for each State to have the same number of votes, regardless of its size or power—thus in UNESCO, Niue has the same number of votes as China, whose population is more than one million times the size of Niue’s; but exceptionally some organizations have systems of weighted voting. The IMF and the World Bank and the EU are the most notable, where the relative sizes of States’ votes reflect the economic power or importance of the States. In the IMF, for instance, the USA has 421,961 votes (16.75 per cent of the total), compared with China’s 95.996, the UK’s 108,122, and Tuvalu’s 755.
These instances of international cooperation between States have in common that the benefits of cooperation outweigh the costs. Cooperation is, generally, not an exercise in altruism, but an exercise in enlightened self-interest; and some areas of international activity are more susceptible to this than others.
What States agree upon
Even a skim through some of the 2,600 volumes of the United Nations Treaty Series, available online, will reveal the immense variety of the treaties—bilateral and multilateral; local, regional, and global—that States have concluded since the middle of the last century. Other series, such as the League of Nations Treaty Series and the various national collections of treaties, contain many more from earlier years, some of which remain in force. Any attempt to summarize this body of practice is bound to be somewhat arbitrary and distorted, but some focuses of international attention stand out.
Trade and economy
Arguably the most significant area of international cooperation is the international economy. The 160-Member World Trade Organization (‘WTO’), which succeeded the General Agreement on Tariffs and Trade (‘GATT’) under the 1994 Marrakech Agreement, is the institution at the heart of a network of more specific agreements that define the principles upon which around 95 per cent of world trade is conducted. States were able to balance concessions in one area against gains in another so as to produce an overall package acceptable to the WTO members, governing not only tariffs and import restrictions but also matters such as subsidies, technical barriers to trade, rules of origin, sanitary and phytosanitary measures, and (more controversially) trade-related aspects of intellectual property rights. The WTO also administers the much-used Dispute Settlement Understanding, which provides for adjudications by dispute settlement panels upon allegations of violations of trading rules, including high-profile disputes over matters such as the EU ban on the marketing and importation of meat products treated with hormones.
Agreement on these matters has been hard won, and the WTO practice of adopting measures by consensus rather than by majority vote has often threatened its ability to play as active a role in the development of international trade policy as many would wish. Nonetheless, the framework that it has already installed is a considerable achievement.
The trade framework is complemented by the international monetary system, where the IMF oversees currency exchange regulations and the World Bank Group provides support for major projects in developing and transitional countries. The practice of attaching conditions to World Bank loans has provided an important mechanism for reinforcing international rules: for example, support for major dam projects has been made conditional upon compliance with international environmental standards. IMF conditionality has been more controversial, with accusations that the IMF has been used as a vehicle for the promotion of western economic policies of questionable utility to developing economies. Nonetheless, these bodies, and associated institutions such as the various regional development banks, and the so-called Paris Club and London Club which provide forums for the renegotiation of international debt, have done much to facilitate international trade and promote economic interdependence.
There are other treaties, too. Bilateral treaties for the promotion and protection of investments, measures to ease the integration of intellectual property rights into the trade framework, and harmonization measures have already been mentioned; conventions on international transportation, and on the movement of workers across frontiers can be added to the list. International law works well in this context because, while many of the obstacles to international trade flows may be the results of protectionist policies, the obstacles tend to take legal forms—either direct regulations on matters such as exchange controls, or obstacles that are the indirect results of divergences between national legal regimes. Both lend themselves to legal solutions in situations where goals, such as the relaxation of restraints on trade, are clearly defined and generally accepted. International organizations such as the International Labour Organization, the International Civil Aviation Organization, the International Maritime Organization, and the many bodies concerned with the infrastructure of transportation and telecommunications also perform a crucial role in oiling the wheels of international commerce.
Humanitarian law and human rights
A second area where international law has had considerable success is that of humanitarian law and human rights. Humanitarian law is one of the oldest parts of international law, and the general desire of governments to avoid unnecessary suffering in warfare is a frail but vital thread running throughout its history. People like to think that they have right on their side when they use force against others, and that they can avoid senseless violence. The jus in bello, considered in Chapter 4, springs from that concern; and there is no doubt that by clarifying and reinforcing the demands of professional military discipline it has made a very important contribution to the mitigation of the suffering and waste caused by war.
The great global and regional human rights instruments of the United Nations era are also impressive achievements. Of course they are not always observed; of course they assert in stark terms very broad rights that probably could not ever be completely fulfilled. But the important thing is the articulation of internationally agreed standards against which the conduct of States can be measured. For the past seventy years no government could maintain that international law is irrelevant to the way that a State treats its own nationals, or that no State has the right to interest itself in such matters. The apparatus of regional human rights courts, international criminal courts, and supervisory committees to which States report (e.g. the UN Committees on aspects of human rights such as torture, the rights of the child, discrimination against women, the rights of migrant workers, and the rights of people with disabilities) keeps the subject in the thinking and policy-making of States.
Urban myths concerning human rights, of the ‘man escapes deportation because he has a pet cat in the UK’ variety, sometimes peddled by politicians who should know better, are misguided. Most of them are simply incorrect; but even if there is a grain of truth in some of them the solution must surely be for national authorities to apply international human rights standards more intelligently, and not to abandon the idea that there are some kinds of conduct that cannot be tolerated in any civilized society, even if some governments do try to engage in them behind drawn curtains.
Environmental protection
A growing body of evidence demonstrates the scale of the environmental and ecological threats that face humankind. Global warming, the destruction of natural habitats, and the alarming rate at which species are becoming extinct are problems that are now a routine part of primary school education around the world. It is an area where international law has chalked up some significant successes.
Pollution is no respecter of national borders; and any serious attempt to control anything more than local pollution within a State requires international cooperation. In order to bring about that cooperation, several factors need to be brought together: a common perception of the problem; a technologically sound and economically viable solution capable of making a significant contribution to the alleviation of the problem; and, in most cases, an understanding that the costs and benefits of action will be spread between States in a broadly equitable manner. Those factors have come together in several areas.
Marine pollution is one. Advances in ship design and equipment made possible a great reduction in pollution from both deliberate and accidental discharges of oil and other pollutants, and that potential benefit was realized by the adoption and implementation of a series of international agreements under the auspices of the International Maritime Organization. The agreements managed to phase in the new technology in an orderly and affordable manner, and to do so for the vast majority of world tonnage so that rogue shipowners would not be able to offer cheaper services and undercut the market by operating sub-standard ships. International law reinforced the agreements on design and operating standards through further agreements which coordinate the activity of port authorities around the world, ensuring that ships engaged in international trade are inspected frequently by one or other port along their voyages, and are effectively monitored for compliance with international standards.
There are comparable success stories in the field of ecology. Conventions that regulate fishing and hunting have preserved many species in the face of over-exploitation and the real danger of extinction. The adoption in national and commercial planning of concepts such as ‘sustainable development’, generated and refined by the UN World Commission on Environment and Development and similar initiatives, has given a readily understandable shape to environmental concerns and to the design of strategies to address environmental problems. Treaties such as CITES—the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (see Figure 8)—and the Convention on Biological Diversity have had a great and beneficial influence upon the development of environmental controls. There can be few major civil engineering projects in the world now where the contractors or the funders or the host governments do not conduct environmental impact studies as a routine part of the project planning, for instance.
8. Repressing the illegal trade in ivory.
These examples illustrate a key point. The main value and practical impact of international law and international standards do not lie in decisions of international courts or tribunals or in resolutions of international organizations: they lie in the internalization of the rules and standards by governmental and private bureaucracies around the world, so that compliance becomes second nature. That is as true in the development of trade policy and humanitarian and human rights law as it is in environmental law. Indeed, it is true across practically the whole range of international activity.
Crime and punishment
A fourth focus of successful international cooperation is the repression of criminal activity. Crimes such as drug trafficking, money laundering, corruption, the counterfeiting of goods and medicines, cybercrime, and terrorism can only be dealt with by cooperation between national authorities; and international law is the natural vehicle for the protocols and understandings that secure such cooperation. INTERPOL, with 190 member countries, maintains a global network connecting national police forces, and facilitates cooperation between them on a day-to-day basis. The UN Office on Drugs and Crime is more concerned with the development of strategy and policy in relation to specific kinds of criminal activity of particular concern. And many of the treaties that have been drafted to overcome jurisdictional obstacles to the prosecution of international crimes also provide for cooperation between national authorities.
This is another area in which the law is well placed to facilitate international action because so many of the difficulties are themselves legal in nature. Piracy is a good example. Several European navies cooperate in policing waters in the Indian Ocean in order to deter or arrest pirates. Piracy has long been established as an ‘international crime’ which can be prosecuted by any State that arrests a pirate on the high seas; but it is simply impractical for, say, a British warship to sail back to the UK to hand over every pirate whom it might arrest for trial in the UK. It makes more sense to try the accused person in a nearby coastal State. But for that to happen the arrest must be carried out and the evidence collected in the manner required by the law of the State where the trial will take place. Furthermore, since the accused would be handed over by British authorities for trial, those authorities must be satisfied that the conditions of the trial and punishment are consistent with the UK’s obligations under human rights treaties. International agreements settling appropriate procedures have made possible the trial of accused pirates by States such as Kenya, so as to enable international efforts to address the problem to proceed. The agreements are, of course, no panacea. The considerable cost to Kenya, and the social and economic conditions that foster piracy, are among the more obvious problems that also have to be addressed; but the alignment of the legal rules and procedures is a necessary step in clearing the way for practical cooperation.
The list of examples could go on and on; but there is little value in extending it. The point is that international law is best thought of as a way of doing things; and practically any kind of international arrangement that can be put into words can be made into law, and the arrangement fixed for future reference. There are, however, some things that international law does not do well, and it is to those that Chapter 7 turns.