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