Can International Law Change the World?

By Shehzad Charania

International Court of Justice

The International Court of Justice

This week, at the Residence of the British Ambassador to the Netherlands, Ambassador Sir Geoffrey Adams opened the British Embassy Annual Lecture Series on International Law.  The guest speaker for the Inaugural Lecture was Judge Sir Christopher Greenwood of the International Court of Justice.

Ambassador Adams explained that the lecture marked the occasion of the Global Law Summit, which took place this week in London, as well the year in which we commemorate 800 years since the signing of the Magna Carta of 1215.

Judge Greenwood’s lecture was entitled “Can International Law Change the World?”.  He began by referring back to the Magna Carta itself.  He explained that Magna Carta had changed “a world”: the law of England, albeit slowly and tentatively.  It established equality before the law; in particular, that even the King was subject to the law; and that justice was not to be sold or denied to anyone.  These principles form the foundation of the rule of law.

So could international law change the world in a similar way, Judge Greenwood asked.  He used as his point of reference the First and Second Hague Peace Conferences of 1899 and 1907.  The inspiration for those conferences had been a belief that international law could indeed change the world.  Specifically, the hope was that these conferences would legislate on the way war was conducted, including the reductions of certain armaments and prohibition of others, and set up an international court, the Permanent Court of Arbitration, which would enable States to settle their differences by law rather than war.

Judge Greenwood explained that the idea that law could solve disputes between States gained prominence following the well-known Alabama claims filed in 1869.  The US’s claim against the UK would in today’s money amount to around $250billion.  The panel of arbitrators found in the US’s favour, and the UK paid at once.  According to Judge Greenwood, the peaceful resolution of the dispute ensured that there was never again a serious possibility of the two countries fighting each other again; and it laid the foundation for the UK-US alliance during the First World War.

So there was good reason for those present at The Hague Peace Conferences to believe that international law could change the world.  World War One swiftly put an end to that vision.  Two major conferences followed: The Paris Peace Conference in Versailles in 1919 and the San Francisco Conference of 1945, the latter setting up the United Nations and the International Court of Justice.  But, as Judge Greenwood explained, in many ways the vision in 1945 was less sweeping and ambitious than during The Hague Peace Conferences.  Following the San Francisco Conference, there was still no plan for an international legislature, law continued to be created through the consent of States, and the idea of an International Court of Justice with compulsory jurisdiction was quickly dismissed.

The post-1945 legal order had at its core three principal goals.  First, to hold the ring in the clash of competing interests between sovereign States: for example, boundary claims, or disputes over state responsibility.  On this issue, Judge Greenwood considered that international law had a good story to tell.  While acknowledging that some of the most serious disputes in the world today still came nowhere near courts, others had been resolved through adjudication.  Two recent ICJ examples he cited were the territorial dispute over the Aouzou Strip between Libya and Chad, where the Court finding in favour of Chad led to Libyan withdrawal from the disputed territory almost immediately; and the dispute between Thailand and Cambodia over the Temple of Preah Vihear, where the Court’s judgment is seemingly being complied with.

So the Alabama arbitration, as well as a number of cases which had come before the ICJ, had shown that the removal of a single toxic issue could contribute dramatically to an improvement in relations between States.

Furthermore, international law had contributed not only to the resolution of disputes, but also to their pre-emption.  By way of example, it could be said with some confidence that the UN Convention on the Law of the Sea had indeed changed the world.  Vast swathes of the ocean suddenly fell within the sovereignty of states.  This could have led to the maritime equivalent of the scramble for Africa that took place between the Great Powers in the 19th century.  But it didn’t.  Instead, the vast majority of maritime claims have been resolved through adjudication.

The second goal of the post-war international legal order was the protection of the weak and marginalised.  Judge Greenwood fully accepted that we were far from a “human rights paradise”: torture and other abuses still took place on a daily basis.  But not on the scale we have seen in the past.  And it had now become a legitimate topic for discussion on the international level.  Furthermore, a number of regional and international bodies had emerged which shone a light on such abuses, and, as such, had created a deterrent effect.

The third goal for international law was to deal with those issues where there was a challenge to the whole of society, which could only be dealt with on a global basis.  Here, according to Judge Greenwood, international law had a more mixed record.  It had not progressed so well in the area of environmental law because of the lack of agreement among States.  But it had been successful on more technical issues, such as the International Civil Aviation Organisation (ICAO), the Antarctic Treaty and the Organisation for the Prohibition of Chemical Weapons.

So although the world had changed for the better in a number of areas as a result of progress in international law – without which the world would be a bleaker, more violent and more unjust place – in other areas, change had been slow.  Why was this?  Judge Greenwood offered two explanations.  First, law was a reflection of the society it served.  That society had shown a reluctance to accept an international legislature, and the principle of compulsory jurisdiction.  Second, enacting law was not enough.  It was a statement of intention.  But it was compliance with the law that would make the difference.  The reluctance of the majority of States to accept compulsory jurisdiction sent the message that States put their fear of being sued ahead of their desire to assert their own rights in bringing claims against others.  In other words, the fear of being a defendant was greater than the fear of being a claimant.

So, in conclusion, could international law change the world?  The answer according to Judge Greenwood was: yes.  But only if States were prepared to allow it to do so.  International law had taken us a considerable distance since World War II.  Further change required not just legal innovation but also political will.

Shehzad Charania is the Legal Adviser and Head of International Law at the British Embassy in The Hague.  You can follow him on Twitter @UKintlaw.

The video of the Judge Greenwood’s lecture is available here.