The United Nations and the strengthening of international law and justice in an insecure world
Autor: Mario Beltran-Mainero
Justice and international law are necessary elements in a functioning and peaceful nation-state system. In that sense, one of the principal functions of the United Nations (UN), an entity created to maintain international peace and security, is to work towards the strengthening of global rules. According to the preamble of the UN Charter (United, Nations, 1945), one of the goals of the institution is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.
Like in any other social system, a functional, peaceful and secure world requires rules. The disregard of international norms jeopardizes the main objective of the UN: to maintain international peace and security.
In the last decades, many political and academic voices have been heard with respect to the supposed weakness or irrelevance of international law. This is not only sad, but dangerous. A global order in which the members feel less and less bound to comply with the norms will eventually devolve into total anarchy and the rule of the strong. Peace will, necessarily, be more often threatened.
International law is, historically, a very recent conception and a very fragile one. Particularly because international law creation and application depends on the will of states, and not on the authority of a supranational government, international law is generally weaker than national laws—which exist under the dominion and sovereignty of states. According to Robinson (Robinson, 2018), international law is
actually less like “law” than a collective pact, one that is often difficult to enforce and which depends on the good-faith participation of the various parties… It’s very difficult, because it requires every party to limit their concern for their own self-interest in order to maximize the collective good. And if one of them betrays the others, the whole tentative cooperative system instantly collapses.
This is why it is necessary that the UN, particularly through the work of the Secretariat through its public advocacy role, engage into efforts for the strengthening of the international legal system. “The role of the Secretariat is multifaceted, ranging from public advocacy of various UN causes and the day-to-day administration of its various economic and social programs to crisis diplomacy and overseeing the work of UN peacekeeping forces in the trouble spots of the world” (Hanhimaki, 2015).
With a particular focus on the laws related to international peace and security, the International Court of Justice and the international criminal law system, the UN, through its Secretary General, must aim to redirect nation-states towards an attitude of respect and compliance of international law and global justice. A campaign led by the Secretary General specifically targeting the reinforcement of international law is therefore proposed.
The international legal system needs strengthening
It is increasingly evident that the international law system is in peril. Provisions related to international peace and security have been openly and blatantly breached in the last two decades, as the clear examples of the invasion of the United States into Iraq or the invasions of Russia into Ukrainian territory show. At least with respect to the provisions related to international peace and security, many leaders and peoples of the world express a growing disbelieve in the fact that international law matters (Bauhman, S. et al, 2013). And that is evidently problematic for the international system.
It is therefore imperative for the UN, within its mandate to maintain peace and security, to fulfil its secondary mandate of establishing conditions to maintain justice and respect for international law. Particularly, the UN should focus on the following issues which we identify as essential in the international law and justice system:
- Demanding respect for the UN Charter’s provisions related to international peace and security.
- Promoting accountability for crimes committed against humanity, as well as those related to genocide and war crimes.
- Strengthening the International Court of Justice and its judgements.
International peace and security rules
International peace and security rules, which forbid the use or the threat of use of force against other nations, are obviously the most important rules of the international legal system. According to Prof. Michael Glennon (Glennon, 2003), “[i]nternational law scholars have long been concerned about distinguishing what states do as a matter of legal obligation from what states do for other reasons—motivated, for example, by considerations of comity, courtesy, or simple self-interest.” So even though they are not necessarily the only cause for nations not invading other nations—political, social, and economic factors within nations need to be considered—international norms provide an essential framework for the behavior of states.
The problem is that the UN, according to most legal experts, has a dubious record when applying the charter’s provisions related to this subject. In the harsh words of Glennon (Glennon, 2009):
The charter generated no formal international response to Soviet intervention in Hungary, Czechoslovakia, or Afghanistan, none to American intervention in the Dominican Republic, Grenada, Panama, or Nicaragua, and none to that of India in Goa, Indonesia in East Timor, China in Tibet, Argentina in the Falklands, or Vietnam in Cambodia, or to the countless other cross-border military excursions since 1945. Diplomatic historians have yet to identify a single instance of interstate violence that was actually stopped by the United Nations.
In the last two decades, the Russian invasion of Georgia and Ukraine, as well as the American invasion of Iraq, have reminded us of the importance of international law related to peace and security. Today, when there is a blatant territorial invasion in Europe and such animosity between many powerful countries of the world (United States, China, Russia, North Korea, South Korea, etc.), it is utterly important for the UN to remind everyone of the importance of upkeeping the obligations under the UN Charter related to peace and security. Compliance may never be perfect due to all the factors involved, but we believe that improvements can definitely be made.
The International Court of Justice
The International Court of Justice (ICJ) is the main judicial organ of the UN. It was established by the member parties in June 1945 under the UN Charter. The Court’s role, according to its official website, is to “settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies”. It is the only court in the globe with general jurisdiction (not theme-based).
All UN members are parties to the ICJ Statute. Therefore, every recognized state in the world is entitled to participate in cases before the Court. But one of the problems of the ICJ is that being a party to the Statute does not necessarily mean that the ICJ has jurisdiction over disputes involving a party. Countries have to somehow authorize the Court to hear cases related to each of them, either generally or by specific case, which means that the ICJ has imperfect jurisdiction over global matters, debilitating the international law system (Ku, 2018). The Security Council may refer cases to the Court, too. Furthermore, “while the ICJ’s caseload has increased slightly—until the 1990s, the fifteen judges handed down a ruling only about a case and a half a year—its caseload remains light due to the lack of compulsory jurisdiction” (Weiss et al., 2018).
But there are more problems with the ICJ beyond this imperfect, or incomplete, jurisdiction. Being the ICJ the principal tribunal for the world, it would be particularly important for the global rule of law and justice that its judgments are complied with. Historically, though, compliance has not been as good as we would wish. A multi-cited academic study found that, until 1987, ICJ decisions had been “generally accorded a large amount of deference” (Charney, 1987). The Nicaragua v. United States, resolved in 1987, which generated a strong negative rejection from the United States, opened an era of weaker compliance. Five out of fourteen cases from then until 2004 involved some sort of non-compliance, “although no state [was] directly defiant” (Paulson, 2004).
According to Charlotte Ku (Ku, 2018), the issue of non-compliance is particularly evident with ICJ’s provisional measures:
The issue of compliance with particular measures shows the weakness of the international legal system, which requires states to be both subjects and agents of international law. If states fail to carry out an ICJ decision, there is little to compel them to do so.
Ku then specifies that with respect to international peace and security, it is particularly problematic that “of the handful of [use of force related] cases that have led to judgements, compliance is estimated at 40 percent”.
International criminal law system
Ever since the end of World War II, an international criminal law system has been developing. States realized that they needed to create some personal accountability mechanisms for the most terrible crimes committed, particularly when they had an international ingredient. First, we had the Nuremberg and Tokyo tribunals. They dealt with WWII Nazi and totalitarian Japan crimes. But states considered that a more encompassing and permanent court was needed in order to tackle this accountability problem. So, they established the International Criminal Court (ICC) with the signing of the Rome Statute in 1998.
The ICC was created to investigate and prosecute the most heinous crimes committed in the international arena. The Rome Statute states that the ICC has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression. These are considered acts that when they are committed, they violate the most essential principles of the UN Charter, as they undermine international peace and security as well as basic justice and human rights.
But the ICC never took firm roots in the world. The most powerful countries are not bound by it. Furthermore, it has publicly and commonly been criticized for being inefficient, overly expensive, and utterly ineffective. According to the International Justice Resource Center, in more than twenty years of work it has achieved only ten convictions.
We agree with the goal of the Coalition of for the International Criminal Court: “the International Criminal Court must continue to evolve into the global court the world demands of it”. It should develop “as a fair, effective and independent Court that sets global justice standards, remains free from political interference, and delivers meaningful justice to victims on all sides of conflicts throughout the world”.
In order to achieve accountability for crimes committed against humanity, as well as those related to genocide and war crimes, we consider that the first step needs to be the strengthening of the ICC. But it is not the only step. The pursuit of law and justice at the international level is necessarily related to other actors, such as national institutions and non-governmental organizations that specialize in collecting, consolidating, preserving and analyzing evidence of the most serious international crimes committed around the world.
A Secretary General’s campaign
The UN Secretariat “has many functions, most explicit among them servicing intergovernmental bodies; providing them with data and information and implementing their mandate; but more informally providing political good offices and normative influence over the global agenda” (Jonah and Hill, 2018). According to the United Nations webpage, the Secretary General’s good offices draw upon his “independence, impartiality and integrity, to prevent international disputes from arising, escalating or spreading.”
The UN, as a multilateral institution, must respect the wishes of the member states. But, at the same time, as an international organization with a permanent structure, it has certain autonomy derived from its founding document, which at the time expressed the will of the member states. This autonomy is, in different intensity according to the particular times and the character of the officeholder, expressed by the words and actions of the Secretary General.
Moreover, Art. 99 of the UN Charter provides that it is within the legal capacity of the Secretary General to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. According to the Indian Institute of Governance and Leadership (2021), this precept has historically enabled the Secretary General to
undertake a wide range of political and diplomatic initiative for the purpose of maintaining international peace and security… Equal part diplomat and activist, conciliator and provocateur, the Secretary General stands before the world community as the very emblem of the United Nations. The tasks demand great vigor, sensitivity and imagination, to which the Secretary General must add a tenacious sense of optimism [and] a belief that the ideals expressed in the Charter, can be made a reality. The Secretary General is best known to the general public for using his stature and impartiality, his good offices in the interests of preventive diplomacy.
We therefore consider that the Secretary General is an essential actor in the struggle for the promotion of justice and international law and propose, as a policy response to the aforementioned problem of the weakening of the international legal system, an international campaign of promotion of international law and justice led by the Secretariat.
This campaign should follow a series of steps:
- A call for an international conference on international law and justice, that includes every state in the world as well as non-governmental organizations, legal experts and prominent global figures. In this conference the importance of the respect of international legal norms and principles for the maintenance of peace and security, as well as for economic stability, must be conveyed. Furthermore, in his inaugural speech, the Secretary General has to convince nations of the humane character of international law. It should be emphasized that we, as a global society, cannot go back to the barbaric times of war and aggression, and therefore rules must prevail. International law should not only be respected when it is in the best short-term interest of states, but out of a sense of legal and moral obligation. The novel aspect of this conference is that it will not focus on a specific event or problem, but in the general crisis of international law within the global system of states.
- In this conference, the Secretary General, along with other important world figures, will make a petition for all states, big and small, to properly join the two most important international courts: the International Court of Justice and the International Criminal Court. It should be stressed that the international legal system cannot properly function if states do not agree that there should be instances that in fact declare what the applicable international law is in each situation of conflict. The progressive view of the current United States government should be seized. Other large countries would follow its lead.
- A marketing campaign around the world, with the aim of informing all peoples of the importance of international law in a peaceful and just world, should be carried out. Men and women around the globe, in general, do not think about the importance of the UN or the international legal system and its courts. But people do care about peace and justice. It is time to begin involving the people of the world in global governance matters. As Secretary General Dag Hammarskjöld once said: “everything will be all right—you know when? When people, just people, stop thinking of the United Nations as a weird Picasso abstraction and see it as a drawing they made themselves”. This will put more pressure on governments to comply with international rules and strengthen participation in adjudicatory bodies.
- A “naming and shaming” campaign should follow, with the help for global civil society, for each breach of international peace and security that the Secretariat, through its instances, finds.
Conclusión
The multilateral system under the UN Charter is the most successful international cooperation achievement in the history of humankind. International law and justice are core elements of this global system of nation-states. But in the 21st century, with all the mass destruction armament existing around the world, a multinational arena without strong rules could mean, at some point, the ruin for humanity. Furthermore, the challenges that we face today are transnational by nature and require rational cooperation between all actors. Therefore, a functional normative system among nations, that holds each of them to a set of agreed principles, is tantamount for international peace and security and global justice. This is in the interest of all peace-loving states, and also of every state that considers worldwide stability as part of its national interest.
We consider that there are three important columns of the international legal system that need reinforcing: international peace and security rules, international criminal law, and the International Court of Justice as principal adjudicator of international legal controversies. They are all considered within the realm of “high-politics”, as they firmly touch on delicate issues such as national security and sovereignty, striking at the core concerns of states. That has made it complicated, historically, to regulate actions and to apply the rules in these areas (issues of “low politics” like trade, communication and transit are more successfully regulated by international law). But the UN must—not only to fulfill the UN Charter mandate but to remain relevant in today’s complex and globalized world—aim for strengthening the legal system in these sensitive realms.
Historically, there have been temperate Secretaries General that bend towards the will of the strongest members states, and also courageous Secretaries General that follow a more independent path. Considering the status of international peace and security and the deep problems that the international legal system faces, it is not time for too much moderation. A robust global campaign with the sole focus of strengthening international law is needed, and the Secretary General is in the sole position to lead it.
Lista de Referencias
Robinson, Nathan J. (2018). Why Does International Law Even Matter?, in Current Affairs, April 14, 2018. www.currentaffairs.org/2018/04/why-does-international-law-even-matter
Hanhimaki, Jussi M. (2015). United Nations: A Very Short Introduction, Oxford: Oxford University Press, p. 36.
Baughman, Shima Baradaran; Findley, Michael; Nielson, Daniel L.; Sharman, J.C. (2013). Does International Law Matter?, 97 Minnesota Law Review 743, 8 Feb. 2013.
Glennon, Michael J. (2003). Sometimes a Great Notion.Wilson Quarterly, www.archive.wilsonquarterly.com/essays/sometimes-great-notion.
Glennon, Michael J. (2009). “The New Interventionism: The Search for a Just International Law.” Foreign Affairs, 28 Jan. 2009, www.foreignaffairs.com/articles/1999-05-01/new-interventionism-search-just-international-law.
Ku, Charlotte (2018). The International Court of Justice, in Weiss and Daws (eds.), in The Oxford Handbook on the United Nations (2nd edition online).
Weiss, Thomas George and Daws, Sam. (2018). The United Nations: Continuity and Change, in The Oxford Handbook on the United Nations (2nd edition Online).
Charney, JI (1987). Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance, in L.F. Damrosch (ed.), The International Court of Justice at a Crossroads..
Paulson, Colter (2004). Compliance with Final Judgments of the International Court of Justice since 1987, in The American Journal of International Law, vol. 98, no. 3, 2004.
Jonah, James and Hill, Amy (2018). The Secretariat: Independence and Reform, in Weiss and Daws (eds.) The Oxford Handbook on the United Nations (2nd edition online).
United Nations Charter (1945)
International Justice Resource Center. International Criminal Court, https://ijrcenter.org/international-criminal-law/international-criminal-court/ (Accessed: November 15, 2022).
Coalition for the International Criminal Court website. https://www.coalitionfortheicc.org/fight/strong-international-criminal-court. (Accessed: November 15, 2022).
Official website of the United Nations. The Role of the Secretary-General, www.un.org/sg/en/content/the-role-of-the-secretary-general (Accessed: November 15, 2022).
Official website of the International Court of Justice, https://www.icj-cij.org/en/court. (Accessed: November 15, 2022).
Indian Institute of Governance and Leadership (2021). International Organizations and Global Governance diplomatic course (attended in July, 2021).
BREVE BIOGRAFÍA DEL AUTOR
Mario Beltran-Mainero is a Mexican career diplomat since 2017. He is currently Deputy Consul of Mexico in Calexico, California. He has a B.A. in Law from Universidad Panamericana, Mexico City, a Master of Arts in Law and Diplomacy from the Fletcher School at Tufts University, and is enrolled in the Master’s program in International Law and Diplomacy at the University for Peace (UPEACE). He has authored several articles on global affairs and teaches a class on international politics at CETYS Mexicali. Mario is married to Adriana, with whom he has two young children: Alexa and André. He is passionate about world politics, sports and anything cultural.
