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ENGAGING WITH INTERNATIONAL LAW
Published online by Cambridge University Press: 03 July 2020
Abstract
This article considers the positive evolution of international law in the past century, and the emergence of a rules-based multilateral system under the UN Charter, which has, inter alia, enabled formerly colonised peoples to exercise their right to self-determination and prohibited the use of force in international relations. The author reaffirms his faith in the ability of international law to provide a common language for the international community to face successfully common challenges, such as poverty, global warming, and the protection of privacy rights in the era of social media and artificial intelligence. Looking beyond traditional beneficiaries and duty-bearers of international obligations, the author makes a case for all actors to engage in respecting, upholding and promoting international law.
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- Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law
Footnotes
This article is based on a lecture the Judge gave at the London Conference on International Law on 3 October 2019. The theme of the Conference was ‘Engaging with International Law’. He is very grateful to Mr Anthony Wenton, Researcher at the British Institute of International and Comparative Law, for his kind assistance in transforming this speech into an article.
References
1 Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 2020) 225 CTS 195.
2 General Treaty for the Renunciation of War as an Instrument of National Policy (adopted 27 August 1928, entered into force 24 July 1929) 94 LNTS 57.
3 Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 2(4).
4 D Eisenhower, ‘Annual Message to Congress on the State of the Union’ (9 January 1959) <http://www.let.rug.nl/usa/presidents/dwight-david-eisenhower/state-of-the-union-1959.php>.
5 Under art 102(1) of the UN Charter ‘[e]very treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it’. As of 2020, the UN Treaty Series runs to over 2900 volumes, containing over 158,000 bilateral and multilateral treaties <https://treaties.un.org/Pages/Overview.aspx?path=overview/overview/page1_en.xml>.
6 See Abi-Saab, G, ‘Cours général de droit international public’ (1987) 207 Recueil des Cours de l'Académie de Droit International 103–4Google Scholar.
7 See in particular environmental treaties such as the Convention on Biological Diversity (1992) ‘Affirming that the conservation of biological diversity is a common concern of humankind’; United Nations Framework Convention on Climate Change (1992) ‘Acknowledging that change in the Earth's climate and its adverse effects are a common concern of humankind’; and the Paris Agreement (2015) ‘Acknowledging that climate change is a common concern of humankind’.
8 Case concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7. Separate opinion of Vice-President Weeramantry at 118.
9 Jennings, R and Watts, A, Oppenheim's International Law (9th edn, Longman 1992)Google Scholar vol 1, 13.
10 Case of the S.S. ‘Wimbledon’ (United Kingdom and others v Germany) (Judgment) PCIJ Rep Series A No 1, 25.
11 Customs Regime between Germany and Austria (Advisory Opinion) (1931) PCIJ Series A/B no 41, 51.
12 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 184–185.
13 See in this regard Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 78 [25].
14 Treaty concerning the formation of a general postal union (adopted 9 October 1874).
15 Universal Postal Union, ‘About History’ <http://www.upu.int/en/the-upu/history/about-history.html>.
16 Universal Postal Union, ‘US Officially Revokes Intent to Withdraw from Postal Union during Washington D.C. Visit of UPU's Director General’ (16 October 2019) <http://news.upu.int/no_cache/nd/us-officially-revokes-intent-to-withdraw-from-postal-union-during-washington-dc-visit-of-upus-director-general/>.
17 Injuries Suffered (n 12).
18 Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ Rep Series B No 4, 24.
19 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58.
20 Sudan Human Rights Organisation, Centre on Housing Rights and Evictions v Sudan, Comm No 279/03-296/05, [27 May 2009] para 222.
21 The United States of America, The French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al, Judgment of 1 October 1946, in Trial of the Major War Criminals before the International Military Tribunal (Nuremberg 1947) vol 1, 223.
22 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.
23 See the Sunday Times and Daily Mail cases before the European Court of Human Rights.
24 EU General Data Protection Regulation (GDPR): Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L119/1.
25 This debate concerned whether the United Kingdom would ever realistically be able to meet the high threshold required to engage Article 62 of the Vienna Convention on the Law of Treaties and unilaterally withdraw from the ‘Backstop’ to the proposed EU Withdrawal Agreement. Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331 Art 62(1) states: ‘A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.’
26 Comments to Waldock Report VI, ‘Art. 55. Pacta sunt servanda’ (1966) 2 UNYBILC 59, 60.
27 This customary international law rule is codified in Article 26 of the Vienna Convention on the Law of Treaties, which states that ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’.
28 Art 2(2): ‘Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.’
29 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970). ‘Good faith’ is referred to no less than nine times, including ‘Every State has the duty to fulfil in good faith its obligations under international agreements valid under the generally recognized principles and rules of international law.’
30 Preamble, arts 26, 31, 46 and 69.
31 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) (Judgment) [2011] ICJ Rep 70, 132–133 [157]–[160]. See also Mavrommatis Palestine Concessions (Judgment) [1924] PCIJ Rep Series A No 2, 13.
32 Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 268 [46]. The critical importance of good faith is also referred to in the landmark ICJ cases of Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, 418; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 264; and Pulp Mills (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 67.
33 Before the Treaty of Peace of Aachen, multilateral treaties were devised as a set of bilateral engagements. See Treaty Peace of Aachen (Aix-la-Chapelle) (1748) 38 CTS 297.
34 See World Trade Organization, ‘The GATT Years: from Havana to Marrakesh’ <https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm>.
35 Most recently, in 2017, the United Kingdom amended its declaration to exclude jurisdiction over nuclear weapons or nuclear disarmament disputes, unless the proceedings also involve the other four Nuclear Non-Proliferation Treaty Nuclear-Weapons States and they also accept the Court's jurisdiction in the case. See A Duncan, ‘Amendments to the UK's Optional Clause Declaration to the International Court of Justice: Written statement – HCWS489’ (Foreign and Commonwealth Office, 23 February 2017) <https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-02-23/HCWS489>.
36 ICJ, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory: United Kingdom of Great Britain and Northern Ireland’ (22 February 2017) <https://www.icj-cij.org/en/declarations/gb>.
37 ‘The Court Seised of a Dispute between Guatemala and Belize’ (International Court of Justice Press Release, 12 June 2019) <https://www.icj-cij.org/files/case-related/177/177-20190612-PRE-01-00-EN.pdf>.
38 See African Commission on Human and Peoples’ Rights, Social and Economic Rights Actions Centre and the Centre for Economic and Social Rights v Nigeria, Comm No 155/96 (2001) paras 44–47.
39 Civil Service Code 1996, given effect by the Civil Service Order in Council 1995.
40 R (on the application of Gulf Centre for Human Rights) v Prime Minister and another [2018] EWCA Civ 1855.
41 General Act of the Brussels Conference Relating to the African Slave Trade (adopted 2 July 1890, entered into force 31 August 1891) (1890) 173 CTS 293; International Convention for the Abolition of Slavery and the Slave Trade (adopted 25 September 1926, entered into force 9 March 1927) 60 LNTS 253.
42 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287.
43 Self-determination as a political concept has a long history. However, it is in the period since 1945 and the adoption of the UN Charter that self-determination has become a legally binding right under international law. See in particular, arts 1(2) and 55 of the UN Charter, which make clear that a purpose of the UN is to develop peaceful and friendly relations among nations and that achieving this in turn depends upon ensuring respect for equal rights and self-determination of peoples; operative paragraph 2 of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 Dec 1960) (adopted by 89 votes to none; 9 abstentions); Art 1(1) of both the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1996) 993 UNTS 3 and the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
44 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 12 December 1977, entered into force 7 December 1978) 1125 UNTS 609.
45 Constitution of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) (adopted 16 November 1945, entered into force 4 November 1946) 4 UNTS 275.