When politicians and lawyers talk of ‘international law’ we take the term for granted. Everyone refers to it but what is it and where does it come from? For example, when the United States of America sought to justify its intervention in Iraq in 2003, it was said its action was justified ‘by international law’.
So what is ‘international law’; broken down inter-nation-al law? It is the law that deals with relations between States – inter-State law- or the Law of Nations as it was once widely called. International law or more accurately ‘Public International Law’ is the body of rules that determines relations between States. It has fundamental principles and values – all States are equal and they must not engage in certain practices – for example, torture is prohibited in all circumstances, as are acts of genocide or waging war. But international law also faces massive challenges. The rise of non-State actors, those who are benevolent, those bent on destruction and large multi-national corporations as well, have started to challenge long held assumptions about the centrality of the nation State in international relations. Microsoft, Apple and Google are all far more important in economic terms than many States; Micronesia, the Marshall Islands and Vanuatu to name just a few. While such developments do not detract from the global importance of Brazil, India, China and Russia, for example, it does pose challenges which international law must address.
In tackling such challenges the critical issue for us, is where does international law come from and how does it address matters such as the changing nature of the international community? There are numerous ‘sources’ of international law and the traditional starting point is Article 38 of the Statute of the International Court of Justice – a body sometimes known as the World Court. The Statute of the International Court is so important that it is an annex to the Charter of the United Nations. The Court is the most important global tribunal and reflects the traditional primacy of States – only States can appear before it. States from every part of the globe – be they Asian, Arab, African, European or American – appear before the Court. The Court seeks to resolve disputes, whether they are concerned with a maritime boundary, the building of a dam, who owns which islands or pieces of land, or whether using nuclear weapons would be lawful or not. The sources of law the Court primarily refers to are treaties (contracts between States), custom (how States behave believing they must do so) and general principles of law. Treaties are now the most important source as they usually are published and easily accessible. Custom is more ephemeral but it is still critical in many areas, in particular, where there are no applicable treaties and where the practice and views of States are discernible. The third key source of international law is what is known as ‘general principles of law recognised by civilised nations’. That is the source which for me says much about international law and which I will discuss for the rest of this discussion.
The phrase itself says a great deal and is worth re-reading carefully – ‘general principles of law recognised by civilised nations’. Well, if there are civilised nations, who are the ‘barbarians’ and what is the test for civilisation? What are ‘general principles of law’? Justice, equity, proportionality all spring to mind but are these principles found in domestic legal systems applicable to the international community? If so, how widespread do such principles have to be – regional or universal? The notion of general principles has long been held-up by lawyers coming from the so-called ‘third world’ as potentially providing an avenue for their civilisations and cultures to influence international law. It is beyond dispute that international law in its current form is a Western European construct. It was designed so as to uphold the interests, values and ethics – religious and otherwise – of a limited number of States. The international community has expanded massively in the last sixty years but the purported secular nature of contemporary international law seeks to mask the Euro-centric history of international law. The Court drawing on ‘general principles’ could potentially channel international law in a direction that takes account of the challenges it faces and simultaneously broaden its sources by drawing on general principles recognised by all nations. Doing so would also further anchor international law’s legitimacy. To do so, however, requires judges from all parts of the world competent in seeing international law as something that needs to be carefully managed and reflects the changing dynamics of the international community. Article 9 of the ICJ’s Statute has always required that the Court’s members be representatives ‘of the main forms of civilization and of the principal legal systems of the world’.
Analysis of the nationalities of the international judiciary, however, highlights that in practice the allocation of seats at the Court is based on States being categorised according to a combination of geography and culture and not on the basis of civilisation or type of legal system. The current allocation for membership to the International Court is as follows: there are three judges from Africa; three from Asia; two from Latin America and the Caribbean; five from Western Europe and other states; and two from Eastern Europe. Then take into account that from these allocations the five permanent members of the Security Council, by convention as opposed to entitlement, have always had a national on the bench and the probability becomes remoter still of having a judge on the Court with a detailed knowledge of, for example, Islamic law or Hindu theology. The Court’s composition is certainly geographically universal but that is not the same as ensuring consistent representation of all the principal legal systems or civilizations of the world. Some legal systems and traditions, namely the common and civil law traditions and the Chinese and Russian legal systems, are always properly represented; other legal traditions and civilisations only periodically or inadequately so. Individual judges, however, have not been able to steer the Court as a whole into unchartered waters. Christopher Weeramantry of Sri Lanka was a passionate and powerful advocate of international law needing to evolve in numerous ways and in doing so to draw on the great legal, religious and ethical traditions which exist beyond the West. We do not know if current or future members will do so either but it is imperative they do. International law belongs to no-one and everyone at the same time. We all need to stake our claim to it. I hope that future lawyers, such as those reading this piece, will bear this in mind if they ever, and I hope they do, seek to practise the fascinating and challenging subject of international law.
Professor Urfan Khaliq‘s research interests are EU Law, Public International Law, International Human Rights Law, Foreign Policy and aspects of Islamic Law.