‘WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights, to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained and to promote social progress and better standards of life in larger freedom’, – Charter of the United Nations, 1945. In this forceful article, Matthew Parish questions whether international law really achieves the goals it wants to.
It is an alluring temptation to believe that the world is becoming a fairer place. Global politics has always been replete with heinous wrongdoings committed by men of one nation against those of others and against their property. But in a new world order, epitomised by ideals of international cooperation, it might be hoped that the prospects for just redress across borders are ever more likely.
This is not just a matter of evil dictators standing before stony-faced Judges in The Hague. Justice between nations themselves, and not just individual perpetrators of international crimes, can likewise be done before fair and impartial tribunals. Disputes that might otherwise cause wars, such as sovereignty over the Falkland Islands or the independence of Kosovo, can be resolved through judicial rather than military means. Economic disputes, in which one country’s exporters seek an unfair competitive advantage over others on the global markets, by way of subsidies or “dumping” goods at below cost price, can be remedied by international adjudication. Disputes over expropriation or nationalisation of foreign assets can also be resolved in this way. Where governments abuse human rights, international courts will hold them to fundamental standards. All this is just the tip of an iceberg in an ever-expanding world of international law.
One might see this expansion of the administration of justice from within states to between them as a natural consequence of the Enlightenment. As society moves from superstition to reason, so humankind elects to resolve its disputes in a correspondingly more rational manner. This means ever fewer wars and ever more dispassionate promulgation of law. In the Enlightenment era, lawyers are the new high priests of a rational order that advances inexorably from the national to the international level. Yet such an account is belied by the non-linear nature of the development of international courts. The notion of an international legal order goes at least far back as Grotius and Kant; but the concept of international courts to enforce that law is entirely a creature of the twentieth century. The most significant proliferation of such courts occurred only after the end of the Cold War. The modern phenomenon of international law is a mere twenty years old. If international law is premised upon Enlightenment principles, why did its renaissance begin only some two hundred years after Kant issued his injunction sapere aude?
While tempting, it can be dangerous to view history through the lens of the development of human ideas: this was the fatal conceit embraced by both Hegel and Marx. To see the growth of international law as a pinnacle of human accomplishment in the field of universal justice may be to commit much the same fallacy. That international law flourished only in an era of a unipolar superpower, something that had never previously been known since the era of Roman domination and the jus gentium, might indicate that the emergence of an international legal order has more to do with the balance of power in Great Power politics than the emergence of some transcendent international moral plateau in the relations between civilised people.
Rather than representing justice between nations in some emerging form of international social contract, international law may instead serve as a set of ideas attending to the interests of the unipolar majority. If so, we would expect impartiality and due process to be observed by international courts in form only and not in substance. And so it emerges. The Judges on the International Court of Justice vote in accordance with the national interests of the countries from which they are appointed. International criminal courts hold black Africans, Serbs and Hutus to account but are disproportionately lenient on others. Investment tribunals, created to rule on claims of expropriation, seldom rule against powerful states but often rule in favour of investors from powerful states. The same patterns emerge in litigation before the WTO courts and international human rights courts.
The prevailing trend in international judicial politics is for the courts and tribunals created by treaties to be buffeted by the Great Powers, taking the utmost care not to cross them: for those states are far more powerful than the tribunals that purport to adjudicate disputes between them. International courts have neither police nor armies to do their bidding. Hence their authority always rests on the support of the Great Powers that create them.
However precarious may be their independence, nevertheless they will grasp at any opportunity for relevance. Hence international courts are abundant supporters of scholarship about what they are, or might be, or should be, doing or developing. They are experts in public relations, extracting moral commitments out of states by shame or exhortation. No respectable (or even unrespectable) European nation could be seen to withdraw from the European Court of Human Rights, although in the round its individual decisions are comfortably ignored. Hence all states pay their dues and pay lip service to the Court’s pronouncements, but it makes little difference to the way they behave in practice. Some courts are veritable experts in extracting resources: the International Criminal Tribunal for Yugoslavia has persuaded its funders to pay billions of Dollars to prosecute just 161 cases over a period of two decades. The court has lasted several orders of magnitude longer than the wars whose crimes it purports to adjudicate, and spent far more money than the warring parties ever did.
When we compare them to the standards we expect of our domestic tribunals, international courts fail the most elementary principles of impartiality, fairness, economy and predictability. They are experts in developing abstractions and scholarship, but almost wholly useless in resolving substantial inter-state disputes. The sphere of international relations remains an anarchy in which, like some primitive and lawless village of 193 families, the most powerful states dominate the weaker ones. Unlike a legal system within a state, in the international system there is no monopoly on the legitimate use of force of the kind that Weber would have recognised. Hence international law is an illusion obscuring the naked exercise of power. Yet this illusion may be of value for its participants. For the stronger states, it may be a tool of their foreign policy and an (albeit corrupted) projection of their domestic legal values. For the weaker ones, it serves as a pretence of commitment to values they do not in fact embrace, and at worst a softening buffer against unrestrained domination by their stronger peers. While international law may be an illusion, Freud predicted that illusions can endure.
Matthew Parish is a partner with the Geneva office of the international law firm of Holman Fenwick Willan, where he practises litigation and dispute resolution before a variety of international courts and tribunals. From 2009-2010 he was a Visiting Fellow with the British Institute of International and Comparative Law in London. His second book, Mirages of International Justice: the Elusive Pursuit of a Transnational Legal Order, is published by Edward Elgar as will be his third book, Ethnic Civil War and the Promise of Law.