The Role of the Citizen

The Role of the Citizen

International Law: Part 2 – The Role of the Citizen.

(It is the essential rôle of the citizen to require cases to be brought to the International Court; and to read, and publicise, the Court’s findings.)

Where does law get its legitimacy? Is it not, ultimately, from common consent?  A law is a statement proscribing or requiring an action but framed in such a way as to maximise the extent of agreement inside the polity that will be governed by that law.  There is little difference in this essential regard between laws inside a state and laws governing actions between states (or between citizens of one state and those of another), except that there is need of (i) a special court  to codify and apply [6]  International Law and (ii) a mechanism for finding and expressing the required consensus. Well, there is an International Court — the International Court of Justice established in the Hague in 1945 by the Charter of the United Nations. But is there a mechanism for finding and expressing the required consensus, without which the law is simply hot air?

It is illegal to kill people in all civilised states, except when the state is at war, whereupon it becomes accepted practice to kill enemy soldiers. (But not enemy civilians, nor random people, nor to use poisonous chemicals, nor cluster bombs, etc.) Why is it regarded as legal to kill enemy soldiers when a state is at war? Surely because society, and common sense, condones killing enemy soldiers (when they are the aggressors), on the grounds of self defence.   

Isabel Hull wrote an excellent article [1] in the London Review of Books (2018, vol. 40/8, pp. 25-6) reviewing the no-doubt equally inspiring book by Hathaway and Shapiro (2017) titled "The Internationalists and their plan to outlaw war" [2]. What a bold and brilliant plan; because states (it seemed, in 1918) could see no possibility of excluding war from their repertoire. But citizens did feel it was necessary to distinguish between acceptable and unacceptable war. The four heroes of Hathaway and Shapiro’s book are: Levinson (1918), Shotwell (1924), Welles (1942) and Lauterpacht (1941). The first three, in the USA, successfully brought sharper definitions of legitimate and illegal wars into international pacts and declarations, and the last, in Britain, successfully argued the consequences of these declarations in making conquest by war illegal. 

The concept that territory changes hands only by consent, never by force, has become a centrepiece of modern international law.  Since 1945 there have been relatively few unprovoked acts of aggressive conquest: the invasion of East Timor by Indonesia in 1975 [3], the conquest of Kuwait by Iraq, and of Balkan neighbours by Serbia spring to mind, but were unsuccessful. Israeli expansion in 1967 was (perhaps) provoked, (though their subsequent movement of population into occupied territory [probably] breaks the Geneva Convention of 1949 [4]). And the Russian re-annexation of the Crimea in 2014 — was that by invitation of a suppressed population?  When is secession legal? When is the suppression of secession legal? (The confederate States of USA, East Timor, The Crimea, the Basques, Catalonia, Scotland?)

General ignorance, by the citizens of the world, seems to emerge as the main obstacle to the application of International Law, for each case has still to be decided by the bulk of the world’s citizens (being not themselves involved in the dispute). It is clearly impossible for more than a handful of skilled jurists in each country to command the facts and comprehend the principles at issue sufficiently to make a sensible assessment. So we need the International Court to consider each case and publish their findings. Currently, there seems little pressure from governments to bring cases to the International Court. Perhaps the sovereign powers tend to regard any intervention by the International Court as an infringement of their own sovereignty. And there seems to be little public pressure on the news media in civilized countries for information. So, it is the essential role of the citizen to require these cases to be brought to court. And to read, and publicise, the Court’s findings.

It has been argued that judgements by the Internation Court are futile if there is no mechanism for forcing the penalties that the Court may hand down [5]. I argue that this is no longer true. Information transfer is now so swift and easy that a widely held judgement against a rogue country will have, in a short time, impact sufficient to influence law-breakers.

(This continues my investigation into the slow process by which we evolve International Law; a folk process; almost a religious process. For Part I see my previous post.)

References:

1.          London Review of Books (2018, vol. 40/8, pp. 25-6)

2.          Hathaway and Shapiro (2017) The Internationalists and their plan to outlaw war

3.         http://ejil.org/pdfs/12/4/1539.pdf

https://www.icrc.org/eng/resources/documents/misc/634kfc.htm; Question 3.

5.         Ranyard West (1945) Psychology and World Order, Penguin Books, Harmonsworth, UK.
6.          I am grateful to Ignacio Gomez-Palacio for a correction.