In 1947, the U.N. General Assembly established the International Law Commission (ILC) and gave it the mandate to promote the progressive development of international law and its codification.
The ILC meets annually (usually in Geneva, but also in New York this year), to carry out that mandate. It then reports to the U.N. Sixth Committee, the primary forum for the consideration of legal questions in the General Assembly. The 2018 report was recently presented to the committee in New York.
Keeping track of international law is important, and can be difficult. Unlike domestic laws, international law doesn’t pass through a legislative process. Much of international law is derived from treaties. The Geneva Conventions would be examples of treaty-based international laws.
The four 1949 Conventions have been ratified by 196 countries, each of which has agreed to abide by certain rules for the humane treatment of wounded or captured military personnel, medical personnel, and non-military civilians during a war or armed conflict. Failure to follow those rules is a violation of international law, and grave breaches can be prosecuted at the International Criminal Court (ICC).
When Obligations Become Laws
A different type of international law isn’t treaty-based but rather is obligatory because the practice in question has been recognized as “customary international law” (CIL).This type of international law results from a general and consistent practice that nation states have followed out of a sense of legal obligation. One example of CIL is the doctrine of non-refoulement. This law prevents nations from forcibly sending a refugee or asylum-seeker back to an area where he or she faces persecution due to race, religion, nationality, membership in a particular social group, or political positions.
Thailand’s forcible repatriation of 45,000 Cambodian refugees at Prasat Preah Vihear in 1979 is a notorious example of refoulement, as refugees were forced at gunpoint across the border and down a steep slope into a minefield. Those who refused were shot. Approximately 3,000 refugees died in the process.
Another example of CIL is the granting of immunity for visiting heads of state. This type of immunity is based on the mutual respect of states for sovereign equality and state dignity. If a nation’s officials are to be tried, it will be in their own courts.
Thus, in 2002, U.S. practitioners of the Falun Gong spiritual movement brought suit against then-Chinese Communist Party leader Jiang Zemin, alleging torture, genocide, and other major human-rights abuses. The U.S. government, however, intervened in the case on the side of Jiang, arguing that as a recognized head of a foreign state, he was entitled to immunity. The federal trial court accepted the government’s argument, and the case against Jiang was dismissed.
The point of CIL is that states have followed these practices regularly and routinely, and have done so out of a sense of requirement as a matter of law, that they have become recognized as international law. That means customs and practices must be monitored in order to determine whether any of them have become laws.
Real-World Implications
According to the U.N. charter, the General Assembly is mandated to encourage the progressive development of international law and its codification. It does so through the ILC, which monitors practices and prepares reports on activities that aren’t already regulated by treaties or CIL. These progressive development drafts aren’t recognized as binding international law, but they can be seen as suggestions toward that end.Of particular interest this year was the proposal to add two topics to the ILC’s future agenda: sea level rise and universal jurisdiction. Sea level rise, of course, is tied to the concept of carbon-based global warming. If that becomes a matter of international law, foreign nations could be granted the right to pursue legal actions against carbon-producing nations.
Perhaps that is a good thing, as it would make it harder to externalize the cost of air pollution, but it also means that questions regarding the science of global warming will no longer be academic; they will have real-world implications. A scandal such as “Climategate,” in which climate scientists were found doctoring the results, or a very inaccurate graph such as the notorious “hockey stick graph” of temperature and CO2 emissions, could have enormously serious consequences.
The development of the doctrine of universal jurisdiction is equally concerning. Universal jurisdiction allows states to claim criminal jurisdiction over an accused person, regardless of where the alleged crime was committed and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity. In fact, it seems likely to conflict with the already-established CIL with regard to immunity for heads of state.
Piracy was the first crime for which universal jurisdiction was recognized. Pirates represented such a serious threat that the nations of the world branded it a crime that any nation could suppress, regardless of the nationalities of the parties involved. Some commentators would still limit universal jurisdiction to piracy, but the past 20 or so years have seen the concept develop rapidly.
In 1991, the High Court of Australia confirmed the authority of the Australian Parliament to exercise universal jurisdiction over those who have committed war crimes. Then, in 1993, Belgium’s Parliament passed a “law of universal jurisdiction,” allowing it to judge people accused of war crimes, crimes against humanity, or genocide, regardless of where the crime took place. In 1998, a Spanish magistrate indicted Gen. Augusto Pinochet for human-rights violations committed in his native Chile.
Shaping Behavior
If it’s permitted to grow organically, international law can be a good thing, despite its apparent threat to national sovereignty. That, however, brings us back to the concept of progressive development. A most interesting insight came during an event where members of the ILC had an exchange with members of the U.N.’s Sixth Committee.The presentation began with the ILC commissioner from the United States, professor Sean D. Murphy of George Washington University Law School, addressing recent ILC reports. He argued that the ILC was taking on too many issues, making it hard to study them fully. He also said that the ILC should delineate between codified laws and progressive development suggestions in its report. Both suggestions seemed eminently reasonable.
Another panelist, however, argued strongly against distinguishing between codified laws and progressive development suggestions. His reasoning was that if people knew that the progressive development matters weren’t law, they wouldn’t follow them, and, therefore, they would never become CIL. In other words, the experts had come up with a good idea and it was best to let others think that it was already codified as international law so that they would follow it, and they would in that manner create CIL.
That type of thinking should raise serious concerns about threats to national sovereignty. International law isn’t inherently superior to the laws of any given nation. It may be deemed better when based on agreement/treaty or when so widely recognized that it becomes CIL.
When, however, officials withhold knowledge so as to shape behavior and to influence the structure of the law, people from all nations have a right to be concerned about the progressive development of international law and about their national sovereignty.
