We the peoples…

…reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,

…establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained

The above are but a few of the prophetic words of the preamble to the Charter of the United Nations to provide hope to citizens across the globe. They were uttered shortly after the Second World War as part of a sound promise “to save generations from the scourge of war.” Yet in the present time we find ourselves needing to question the efficacy of that very system designed to protect individuals through agreements, principles, rules, duties, obligations and rights with the combined purpose to regulate the behavior of states and their mutual interactions. This we tend to refer to as the “rule-based order” or the system of international law. With the UN at the apparent summit of the governance pyramid of this system responsible for peace and security, it can hardly come as a surprise that ongoing major issues such as climate change, failing food productions, illegal special operations, interventions, civil wars and regional conflicts have given rise to a strong displeasure with national governments driven by national interests and international organizations being subservient to the international politicking by the few, rather than a strengthening of the international rule of law for the benefit of the many. Perhaps, by flagging these issues in a format and content familiar to those observing the workings of the UN Security Council (SC) and General Assembly (GA) may bring about a debate among novice legal scholars and position a new leadership of the future.

Declaration of Displeasure

We the peoples,…

Question the efficacy of the UN international legal order, recalling purposes and aims of the UN Charter, The Universal Declaration of Human Rights, The Genocide Convention, The Geneva Conventions, The Outer Space Treaty, UNCLOS III, The Rome Statute

In the strongest possible manner express that we are…

Disillusioned in the Permanent 5’s persistence with 1945 colonial power relationships and structures, and their ignorance of the equality between all nations;

Flabbergasted by the inability to appropriately safeguard citizens’ right to life by not pursuing the Sustainable Development Goals;

Angry about continued failure to hold to account those nations that signed and ratified the genocide convention yet are destroying minority populations such as Uyghurs and Rohingya;

Irate about the failure of the international legal order to suspend nations that do not comply with international law and the “rules of the club” and adhere to SC resolutions: Russia in Georgia, Ukraine and Moldova; Israel in the Palestinian Occupied Territories; Iran and Syria in its support for destabilising terrorist activities by Hamas and Hezbollah; Türkiye in its occupation of Northern Cyprus; Rwanda supporting insurgents of the ’23-March Movement’ in the DRC;

Confused about the lack of enforcement when nations ignore their treaty obligations to accept outcomes of international arbitrations by the Permanent Court of Arbitration such as in The South China Sea Arbitration between the Philippines and China;

Bewildered by the number of UN members with laws to punish their citizens for loving their fellow citizens of the same gender, such as the FIFA World Cup organiser Qatar.

This short article stands still at these recent failures in the international legal system to successfully bring the preamble words to life. By contemplating the aforelisted examples readers are invited to reflect and question whether these failures are due to malevolence, misunderstanding or simply the cause of design flaws. Nevertheless, we remain hopeful that the system can be mended. It is acknowledged, though, that a successful endeavor requires the international community to better build consensus and recognize the benefits and willingness of states to serve their own and their neighboring states’ people much better.

Rule of International Law

It seems prudent to reset the tone of this article and recall some basic tenets of international law. Hopefully, this helps in improving understanding of the state of play and determining the urgency needed for adjustments. At its heart the international legal system is a network of relationships that exists primarily between States—and some international organizations—and which recognize certain principles and ways of acting that are common to all. In essence, international law is about politics and values and primarily formed through agreements or treaties creating rules that are binding upon the signatories. Furthermore, international law is formed by customary rules that emanate from state practices recognized by the community at large and that exist as patterns of conduct that have to be adhered to. Nevertheless, to dilletante legal observers, international law appears to consist of rules from which states may pick and choose. At a recent international legal conference in London, Professor Christine Chinkin reminded the audience that, contrary to popular belief, states do observe international law and that violations are comparatively rare; in other words, “most states adhere to most laws most of the time.” It is then especially frustrating when the system remains powerless to respond to states that violate certain rules and principles.

Yet a fundamental principle of international law remains that bad faith is not presumed. Nevertheless, at a UN Security Council (SC) meeting in April 2022, President Zelensky voiced his frustrations with the inability of the international legal order to respond to Russia’s violations of the UN Charter, referring to its first article. As it defines maintenance of “peace” as one of the UN’s purposes, Zelensky questioned what would be the purpose of the remainder of the charter if one were to allow a violation of that first article. From a European perspective, European nations have taken in millions of refugees fleeing Ukraine, which is undisputable evidence that Russia’s war of aggression continues to jeopardize the rules-based order, as well as European and global security.

Role of the United Nations

While the UN Charter epitomises the importance of the rule of law, it does not explicitly refer to this. Nevertheless, the UN Secretary Generals (SG) embody the importance of the rule of law more convincingly than successive SGs have done during the past decades. In 1995, Boutros Boutros-Ghali heralded the creation of laws to govern relationships between nations as one of the great innovations of modern times. Against the backdrop of a disintegrating Yugoslavia and Middle East conflict, he also argued that international law needed to draw conclusions from the disorder in the world and that the rule of law needed to invent new procedures to be better suited to serve peace and security. At the end of his tenure, it was his successor Kofi Annan’s contention that security and development ultimately depend on respect for human rights and the rule of law. During his inaugurate days in 2007, Ban Ki-moon expressed the hope that the international community would pay due regard to all aspects of international law and promised to help member states and the international community to strengthen the rule of law. More recently, building on his predecessor’s Sustainable Development Goal for the Promotion of Just Peaceful and Inclusive Societies, Antonio Guterres committed to promoting a new vision for the rule of law. These proclamations remain valid lessons for today, but for them to be more than lofty ideals, the international legal system’s deeds will need to speak louder than mere words.

In December 2020, in a letter to the UN SG and Permanent Representatives of the UN SC the then SC President stressed the importance of promotion of the rule of law in the UN’s primary purpose, i.e. the maintenance of international peace and security. At the same time, the President of the International Court of Justice (ICJ) iterated the strengthening of cooperation between the UN SC and ICJ and advocated the strengthening a partnership to uphold the international rule of law. The ICJ President remarked that the SC had only invoked Article 36(3) of the UN Charter once. While this article provides the SC with the option to make recommendations and to take into consideration that a legal dispute should, as a general rule, be referred to the ICJ, the president argued it had done so only once in 1947 when it referred the Corfu Channel case between the United Kingdom and Albania. Nonetheless, the UN SC has continually used international law in identifying threats. In April 2000, in its Resolution 1296, the UN SC linked violations of international law and threats to international peace and security.

Diminishing Value of Courts?

It is important to note the role of international courts in the UN’s pursuit of its aims. At present there are more than 40 international courts and tribunals, some with global jurisdiction, some of a permanent nature, others regionally and ad-hoc constructions. It may be tempting to question the fragile nature of these courts when reflecting on them against a background of strong national courts. But such comparison is inappropriate, as it does not recognize the time it has taken to evolve as important components of national legal systems. As much as is possible international law has been pursuing the purpose of reconciling conflicting interests and concerns of sovereign interests. Yet contemporary legal problems seem to impose different and possibly unsurmountable legal challenges. For example, issues caused by climate change are not limited to territories where merely national sovereignty applies. Instead, they permeate national boundaries while effects of emissions or pollutions in one state are likely to be systemic in nature and bring about unintended consequences in other states. While international courts have largely remained silent on the topic, international law and the courts’ role will clearly need to evolve.

While the aforementioned dilletante legal observers may judge the courts to be impotent instruments and may complain about their ever-growing feelings of uncomfortability, they ought to be reminded that international law provides the only common language. One should endeavor to stress its importance, need to adhere, but also its improvement if its purposes are lacking. The character of international law has been evolving continually and, using words of former Judge Theodor Meron as illustration, for instance, the evolution of international humanitarian law from an inter-state to an individual rights perspective reflects the acquisition of a more humane face. Thus, we ought not despair! Through public opinion the populace can mobilize and assert pressure on political leaders and national representatives. Have we not also been able to accept that the world is not flat and the earth not the center of the universe. So will international law continue to evolve. Progress is only possible if we are willing to accept the notion one might be wrong. By challenging our own views and testing these against those of others, we may open our minds to the views of others and both grow. Moreover, we may find that the way we are heading is not where we end up. Robert H Jackson’s profound opening of the IMT Nuremberg Trials on November 21, 1945, humbly reminds us that “to submit to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Cornelis (aka Kees) van Haperen is a former officer in the Dutch Air Force, a published Systems Thinking expert and a consultant in defense and security based in the United Kingdom. He recently completed his LLM in Public International Law at the University of Nottingham and is currently preparing to be accepted for a PhD in emergencies, crises and disasters and situations of violence and non-international conflict.

Suggested citation: Cornelis van Haperen, International Rule of Law: Declaration of Displeasure with the International Legal System, JURIST – Professional Commentary, November 22, 2022, https://www.jurist.org/commentary/2022/11/cornelis-van-haperen-international-rule-of-law/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org