By Dr Bertrand Ramcharan
Barrister-at-Law; Diploma of the Hague Academy of International Law.
Honorary Commissioner of the International Commission of Jurists
This is a time of great uncertainty and intense challenges for international law and for the United Nations. Both international law and the United Nations have come under severe assault from major powers. Russia invaded Ukraine and has been waging war on it for five years now. The USA, under President Donald J. Trump, has openly avowed that pursuit of its own interests comes above any ‘international law’ or international organization, and the USA has withdrawn from dozens of organs and agencies of the United Nations system – with the threat of withdrawing from even more. China and Russia openly deprecate the so-called liberal international order, whatever that may mean to them, and are calling for unspecified radical changes at the United Nations.
Ever since 1899, building on the earlier work of the International Committee of the Red Cross to develop rules of international humanitarian law, well-meaning governments and international associations of lawyers have pursued efforts to progressively codify and develop the rules of international law. The two Hague Peace Conferences of 1899 and 1906 helped write up the laws of war and promoted the international rule of law through the peaceful settlement of disputes. The Permanent Court of Arbitration, on which I was one of Guyana’s judges, was one outcome of these efforts.
The efforts of the League of Nations to progressively codify international law took this process forward to clarify and record the rules of international law in various spheres, and the United Nations built on that work through the efforts, inter alia, of its International Law Commission and the Legal Committee of the General Assembly. The International Law Commission, on which I wrote my Doctoral thesis at the LSE and a subsequent book, has helped clarify the content of international law in foundational areas such as the sources of international law, the Rights and duties of States, accountability for international crimes, the law of treaties, the law of state responsibility, diplomatic and consular law.
In its work on the Rights and duties of States, the International Law Commission affirmed that the states of the world constitute a community governed by international law and that international law takes precedence over incompatible national laws. The supremacy of international law was championed vehemently by the new states entering the United Nations after the decolonization movement that accelerated in the 1960s. Caribbean jurists played a prominent role in this process.
The cumulative effect of the affirmation and recording of the rules of international law that took off in 1899 and continued throughout the twentieth century and the first quarter of the twenty-first century is that the international community developed a corpus of international law with the following features:
• The law-creating processes of international law, its sources, have been recognized to be, in that order, treaties, customary international law, and general principles of law shared by the principal legal systems of the world.
• Law determining agencies were recognized to include judicial decisions and the writings of highly qualified publicists.
• The Permanent Court of International Justice, the International Court of Justice, and the Permanent Court of Arbitration have delivered a sizeable number of legal decisions clarifying the content of international law.
• The States of the world have agreed to be bound by the provisions of the United Nations Charter, which contains binding legal obligations under various articles, particularly under Chapter 7 of the Charter.
• Regional human rights courts in Africa, the Americas, and Europe, have delivered a substantial body of decisions affirming and clarifying the content of international-regional human rights law.
This body of international law developed over the past century and a quarter is now under challenge, in particular, from three heavily armed nuclear powers, China, Russia and the USA:
• China claims that it did not participate in the development of unspecified parts of the corpus of international law and is therefore not bound by them. This results in uncertainty, and destabilises the international rule of law.
• Russia, like China, claims that the so-called liberal international order, which includes rules of international law, is a western imposition and therefore not binding on Russia. In sum, Russia, like China, plays by its own rules, whatever it says they are.
• The USA, under President Donald J. Trump, has declared that it will abide only by its own rules and retains open the option of withdrawing from the United Nations or from any agency of the United Nations system it chooses. It has withdrawn from the highly respected International Law Commission. It is worth noting that the USA even reserves the right to withdraw from the North Atlantic Treaty Organization, NATO.
The international community of States, and the Peoples of the United Nations, are now faced with the following issues that they must think through:
• A sizeable corpus of what is known technically as customary international law has, over the past century and a quarter, been recognized by authoritative bodies of the world community. Is it permissible under international law for any state, including powerful states, to say that it does not recognize such and such rule? This is plainly inadmissible and should be denounced.
• Parts of this body of customary international law include norms of international public policy from which no derogation is permissible. Is it permissible under international law for any State to declare that it does not recognize such rules of international public policy? This also plainly inadmissible.
• Parts of this body of customary international law include norms of a constitutional character, inspired by norms in the United Nations Charter. These constitutional norms of international law are binding on all States both as norms of customary international law and as norms of international treaty law, to wit, the United Nations Charter?
Because of the uncertainties of the times we are passing through, it is important to identify and register UN Charter-inspired constitutional norms that are now part of customary international law. This is important for at least two reasons: First, to help clarify and record the content of constitutional parts of customary international law. Second to reinforce the legal underpinnings of present and future international cooperation. What is involved here is the reinforcement of the international rule of law.
The Charter of the United Nations laid down the guiding principles of the present-day world order that emerged from the ruins of the Second World War. Those principles, as elaborated upon in the General Assembly’s Friendly Relations Declaration of 1970, are sovereign equality, self-determination, non-use of force, the principle of non-intervention, and the principle of international cooperation. These are the bedrock of Charter-inspired constitutional principles that are now solidly embedded in customary international law.
The international community has also sought to identify a number of basic values that are shared by humankind as a whole. Already in the Charter of the United Nations, human rights were proclaimed as one of the primary goals to be pursued by the world organization. The dignity of the human person constitutes a value now solidly ensconced in customary international law. All human beings, the Universal Declaration of Human Rights solemnly proclaimed, are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirt of fellowship.
Caribbean States, as small states, particularly need the support and the protection of international law. There are two initiatives that CARICOM could now spearhead at the United Nations in support of the role of international law. First, propose that the General Assembly declare a Second Decade for International Law. The first decade was observed a good while ago and it would be timely to launch a second decade now.
Second, CARICOM could launch an initiative to establish a Charter Compliance Committee within the framework of the Sixth, the Legal Committee of the UN General Assembly. There are a number of treaties or conventions concluded under the auspices of the United Nations that have a reporting arrangement and a supervisory body charged with following up on States Parties’ implementation of the treaty. There is also the innovative Universal Periodic Review process of the UN Human Rights Council that does a superb job in promoting international dialogue and cooperation for the better implementation of UN human rights treaties.
Under the Universal Periodic Review, Member States of the United Nations submit every four and a half years a report on their efforts to implement their international human rights obligations. These reports are first discussed in a working group of the whole of the Human Rights Council and thereafter in the plenary Council.
Member States commenting on the national report of a country may make observations, suggestions and recommendations. These suggestions and recommendations are written up in a report of the working group of the whole. The Member State under review is at liberty to accept or not to accept such suggestions and recommendations. Recommendations accepted by a Member State are followed up for implementation either in mid-term discussions or in the next four and a half years.
The United Nations Charter is the most important, constitutive, treaty of the world organization. The establishment of such a review process for the United Nations Charter would be a major breakthrough for the United Nations. One could envisage the Sixth (Legal) Committee of the UN General Assembly constituting itself into a Charter Compliance Committee that has an ongoing dialogue with Member States of the United Nations on the measures they are taking to follow up on their legal obligations under the UN Charter.
To start off such an exercise, one could envisage the UN Charter Compliance Committee opening up with a dialogue with each Member State of the UN on a list of issues such as the following:
• What is the status of the UN Charter in the constitutional and legal order of the country?
• Is there a Parliamentary committee or body that periodically reviews how the country is giving effect to its binding legal obligations under the UN Charter or under binding resolutions of the UN Security Council?
• What arrangements, if any, exist, to review obligatory payments due from the country to the United Nations?
• How is civil society participating in efforts to support the implementation of the Purposes and Principles of the UN Charter?
• What efforts are being made to inform and educate the population, especially the youth of the country, about the Purposes, Principles, and activities of the United Nations?
CARICOM States on the UN Security Council have contributed substantially to the defence of the law of the UN Charter, and of international law generally. CARICOM recently pledged its support for the candidacy of one of its numbers for the post of UN Secretary-General – a deserving candidate.
CARICOM must now play a leadership role in defence of international law and in support of the international rule of law. The security and vital interests of CARICOM States are now at issue. Guyana, the host state of CARICOM, could help show the way in this matter.
Discussion