IF INTERNATIONAL LAW WORKED AS WELL as Canadian law, there would be no need for the peace movement and we could all spend more time with our families, gardens, and pets. Our laws allow us to live without undue concern for protecting our lives, rights, or property. International law has the same goal for global society.
In fact, the theory of international law-that rules should bind nations as Acts of our legislatures bind us-developed in response to the barbarity of war. Observers of the Thirty Years War which raged in Europe from 1618 to 1648, advocated limits to national power based on justice. Since that time, international law has developed in great leaps, usually in response to breaches of international peace. It took World War I to make nations agree to form an international organization (the League of Nations), and it took World War II to convince them of the need for a supranational body, the U.N. Security Council, to maintain peace. Some scholars fear that not until the aftermath of World War Ill will society (whatever remains of it) have the political will finally to move to an international system based, not on the use of force, but on the force of law.
No matter how jealously nations guard their own sovereignty, some World Law already exists, and can be developed for a peaceful planet.
Understanding some basics of international law-as it is now and as it could be-is important for the peace activist who wishes to increase public awareness, so that the system of threatened nuclear destruction could be abandoned without jeopardizing any nation's security. International law could be strengthened and used to provide peace.
International law is the sum of all rules which bind nations. These rules come from three sources:
Agreements make up by far the largest part of present international law. Most customs have already been expressly recognized by agreement, although it is of course still possible for new customs to develop. (A recent case of the rapid emergence of custom was during World War I,
when it was accepted, without written agreement, that a country owned the airspace over its territory.) General principles of law (e.g. the squatter's rights" principle from common law that, if one uses a piece of land without interference from the owner for a long period of time, one obtains a right to use the land) have also largely been defined and now are used more to interpret treaties than to forge new law. So while customs and principles may be mentioned in this primer on international law, I will focus on the role of treaties and other international agreements.
The differences between international law and Canadian law immediately spring to view. No international equivalent of Canadian Parliament exists to pass laws for the good of the world. With the exception of the diminishing category of customs and principles, international law is created by nations agreeing to be bound by rules they set for themselves in treaties. The United Nations is the closest thing we have to a world legislature, yet it can only pass resolutions in the General Assembly which can be used as evidence of the existence of an international custom. Actually, its most important role relating to international law lies in its ability to facilitate multilateral negotiations. If successful, these negotiations will result in a treaty which, once ratified, will be international law, binding the ratifying nations.
A number of things can happen to a state when it appears to have broken international law. The word "appears" is important: No nation these days does something and announces: "This action was taken in contravention of international law, but we decided to do it anyway." Rather, acts which appear to fly in the face of international agreements are often justified by use of another international law principle from another agreement. For instance, acts of aggression, banned since 1945 by the U.N. Charter, are often justified as "self-defence," a principle also enshrined in the Charter.
Apparent violations of international law are usually handled in one of two ways. (1) Negotiation. Most disagreements are settled at this level. The parties to an agreement meet, discuss the alleged violation, and resolve the problem with clarifications, apology, reparations, or some combination of these given by the offending state. Because this private resolution lacks drama, and the results may be secret, the press tends not to report it. The United States and the Soviet Union have institutionalized negotiated resolution of their concerns over violations of the Strategic Arms Limitation Talks (SALT I and II) Agreements. Twice annually, since 1974, negotiators meet in Geneva to review compliance. Results of these talks are secret, but we know that both patties have changed their activities as a result of the discussions.
(2) Third Party Decision. If the dispute is not settled at the diplomatic level, the matter may be resolved by a third party. For citizens, that third party is a court. For nations, a choice exists. The court with the widest powers is the International Court of Justice (ICJ), often referred to as the "World Court," established in The Hague by the United Nations Charter. The World Court, made up of fifteen judges chosen by the U.N. General Assembly, can decide any case which U.N. members refer to it. As with international law itself, a nation is only subject to the court if it agrees to have the court judge its case. Forty-seven countries, including Canada, have agreed to submit to the court's ruling on certain kinds of international disputes. Many others have not granted the Court this power. The Soviet Union and other Warsaw Pact states reject the power of the court completely. The United States recently withdrew its acceptance of this compulsory jurisdiction as part of its rejection of Nicaragua's World Court challenge of American activities in Central America. Parties to a dispute either agree to have it settled by the court or one nation can take the other to court if they both agreed beforehand to go to the ICJ should a dispute arise. Many other, more narrowly focused tribunals exist. One of the most successful is the Court of Justice of the European Community, which has resolved more than 2000 cases of disputes under the Common Market and other treaties.
Decisions of international tribunals have varied means of enforcement. While the Security Council of the United Nations is supposed to enforce the decisions of the world court by whatever measures it deems necessary, the Council has never been able to overcome ideological differences among its membership long enough to carry out this responsibility. Canadian laws are ultimately enforced by the existence of a penal system; no international equivalent exists. However, nations, for the most part, honor their agreements. Nations obey international law because they believe that they are better off in the long run by obeying it than by not obeying. Though this may seem a weak system, consider this question: Why does the Canadian government obey a Canadian judge who decides that the
government owes a tourist compensation for an injury she received in tripping on the House of Common steps? Not because an army backs up the judgment. Rather, because it knows that if the government were to disobey a court decision, respect for the government and our legal system would diminish. Nations want their interests guaranteed in international agreements. Those agreements will more likely be kept if they themselves keep them.
All this explanation is the somewhat barren framework of what are very exciting developments in our civilization. While the need for nations to agree to a law before it affects them is pointed to as a fundamental weakness in the whole system, one need only look to the mammoth proportions of current treaty-making to realize that nations are in fact agreeing to limit their individual powers in exchange for the benefits of international order. More treaties have been concluded since 1945 than in the preceding two thousand years, and their content has changed international life. A myriad of agreements and organizations regulate global commerce, communication, and travel, and set standards which nations must meet in human rights, labor, and health. The eradication of smallpox by effective international cooperation could not have happened in an earlier era.
But what about world peace? The United Nations was created "to save succeeding generations from the scourge of war." Yet its stellar achievements lie elsewhere-in social and economic justice-rather than in the area of peace. Advances have been made, however, and by supporting them and pushing for larger reforms we work toward creating a warless world. The greatest achievement of international law is the existence of the United Nations itself. The lengthy meetings of representatives of more than 150 nations who examine the question of peaceful conflict resolution have allowed for the development of standards against which the activities of nations are judged. It is impossible to keep a tally of wars prevented by the United Nations, but it undoubtedly is large.
Nuclear weapons were first used after the U.N. Charter had been drafted. But numerous agreements have since been drawn up and ratified which aim to restrict the testing, placement, size, and nature of nuclear weapons which may be used. These treaties have not yet been violated and should be considered as crucial first steps toward a world which outlaws nuclear weapons altogether. Here follow brief descriptions of the major nuclear weapons treaties.
The Antarctic Treaty of 1959 represents an agreement between the United States and the USSR officially to prohibit military bases, manoeuvres, weapons testing, or any other non-peaceful activity in the Antarctic. The twelve nations that border on this area have ratified the treaty. They all have the right to inspect each other's outposts in the area. To date, no treaty breach has been reported. In fact, a number of cooperative ventures have taken place.
The Limited Test Ban Agreement, signed in 1963, declared all atmospheric, outer space, and underwater nuclear tests illegal. One hundred and twenty-one states, including all nuclear weapons states except France and China, are party to this treaty.
The Outer Space Treaty of 1967 declared that the moon and other "celestial bodies" are to be used only for peaceful purposes. Eighty-six nations have signed this treaty, which explicitly prohibits the stationing of nuclear or other weapons of mass destruction in space. Since coming into force, a number of joint U.S.-USSR ventures in space exploration have taken place.
The Treaty of Tlatelolco created a twenty-four-nation nuclear weapon free zone in Latin America. Parties to the treaty agree to prevent the testing, use, deployment, manufacture, production, or possession of nuclear weapons in their respective territories and to negotiate verification agreements with the International Atomic Energy Agency. By a special protocol to the treaty, the nuclear powers (except France) have agreed to respect the denuclearized status of the zone and have pledged not to use or threaten to use nuclear weapons against any of the parties to the treaty.
The Nonproliferation Treaty of 1970 is one of the most important forces preventing the spread of nuclear weapons. By agreeing to its measures, nuclear-weapon states agree not to transfer nuclear weapons to non-nuclear-weapon states. Non-nuclear-weapon states agree never to obtain nuclear weapons, to submit to verification inspections by the International Atomic Energy Agency, and in return to receive two promises. The nuclear weapon states pledge to share the benefits of nuclear technology and to bargain in good faith for nuclear disarmament. Eighty-six nations are party to this agreement. Conspicuous by their absence are France, China, and several "near-" nuclear-weapon states such as India, South Africa, Argentina, and Israel.
The Seabed Treaty of 1973 prohibits the placement of nuclear weapons on the seabed or the ocean floor beyond a twelve-mile coastal zone. Eighty-six states are party to this agreement.
The Anti-ballistic Missile Treaty prohibits the testing, development, or deployment of sea, air, or mobile systems designed to strike enemy missiles as they approach one's territory. It entered into force in 1972 between the United States and the USSR. This agreement is now threatened by the American Strategic Defence Initiative, but as SDI is still at the research stages, the treaty has not yet been violated.
So we have come some way in the creation of international rules to guide nations. If it were not for the peril posed by nuclear weapons, we might even be complacent with this slow, steady development of international law. Instead, we must work with determination for the growth of these international laws and institutions into an alternate security system of such power that disarmament efforts will succeed simply because arms are no longer seen as necessary by any countries. (Part I of a Two-part article.)
A Common Sense Guide to World Peace, by Benjamin B. Ferencz (Oceana Publications, 1985). This 100-page book distills a great deal of international law and political science into three sections, "What has been done," "What should be done," and "What can be done." Easily read, it is a fine introduction. An Introduction to International Law, Chiefly as Interpreted and Applied in Canada, by S. Williams and A. de Mestral (1979) is the standard introductory textbook on international law in Canada. It is very readable and provides a good picture of international law in general.