The Future of International Law (Part I)


Human Wrongs Watch

By John Scales Avery*

“With law shall our land be built up, but with lawlessness laid waste.” Njal’s Saga, Iceland, c 1270.

Abstract

After the invention of agriculture, roughly 10,000 years ago, humans began to live in progressively larger groups, which were sometimes multi-ethnic. In order to make towns, cities and finally nations function without excessive injustice and violence, both ethical and legal systems were needed.

**Agricultural scene from Ancient Egypt. | Author: Norman de Garis Davies, Nina Davies (2-dimensional 1 to 1 Copy of an 15th century BC Picture) | Wikimedia Commons.

**Agricultural scene from Ancient Egypt. | Author: Norman de Garis Davies, Nina Davies (2-dimensional 1 to 1 Copy of an 15th century BC Picture) | Wikimedia Commons.

Today, in an era of global economic interdependence, instantaneous worldwide communication and all-destroying thermonuclear weapons, we urgently need new global ethical principles and a just and enforcible system of international laws.

What is law?

The principles of law, ethics, politeness and kindness function in slightly different ways, but all of these behavioral rules help human societies to function in a cohesive and trouble-free way. Law is the most coarse. The mesh is made finer by ethics, while the rules of politeness and kindness fill in the remaining gaps.

Legal systems began at a time at a time when tribal life was being replaced by life in villages, towns and cities. One of the oldest legal documents that we know of is a code of laws enacted by the Babylonian king Hammurabi in about 1754 BC.

It consists of 282 laws, with scaled punishments, governing household behavior, marriage, divorce, paternity, inheritance, payments for services, and so on. An ancient 2.24 meter stele inscribed with Hammurabi’s Code can be seen in the Louvre. The laws are written in the Akkadian language, using cuneiform script.

Humanity’s great ethical systems also began during a period when the social unit was growing very quickly. It is an interesting fact that many of history’s greatest ethical teachers lived at a time when the human societies were rapidly increasing in size.

One can think, for example of Moses, Confucius, Lao-Tzu, Gautama Buddha, the Greek philosophers, and Jesus. Muhammad came slightly later, but he lived and taught at a time when tribal life was being replaced by city life in the Arab world.

During the period when these great teachers lived, ethical systems had become necessary to over-write raw inherited human emotional behavior patterns in such a way that increasingly large societies could function in a harmonious and cooperative way, with a minimum of conflicts.

Magna Carta, 1215

2015 marks the 800th anniversary of the Magna Carta, which is considered to be the foundation of much of our modern legal system. It was drafted by the Archbishop of Canterbury to make peace between the unpopular Norman King John of England and a group of rebel barons.

The document promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations feudal payments to the Crown. It was renewed by successive English sovereigns, and its protection against illegal imprisonment and provisions for swift justice were extended from the barons to ordinary citizens.

***The Magna Carta (originally known as the Charter of Liberties) of 1215, written in iron gall ink on parchment in medieval Latin, using standard abbreviations of the period, authenticated with the Great Seal of King John. The original wax seal was lost over the centuries.[1] This document is held at the British Library and is identified as "British Library Cotton MS Augustus II.106".[2] | Original authors were the barons and King John of England. Uploaded by Earthsound | Wikimedia Commons

***The Magna Carta (originally known as the Charter of Liberties) of 1215, written in iron gall ink on parchment in medieval Latin, using standard abbreviations of the period, authenticated with the Great Seal of King John. The original wax seal was lost over the centuries.[1] This document is held at the British Library and is identified as “British Library Cotton MS Augustus II.106”.[2] | Original authors were the barons and King John of England. Uploaded by Earthsound | Wikimedia Commons

It is considered to be the basis for British constitutional law, and in 1789, it influenced the drafting of the Constitution of the United States. Lord Denning described the Magna Carta as “the greatest constitutional document of all times: the foundation of the freedom of the individual against the arbitrary authority of the despot”.

http://en.wikipedia.org/wiki/Magna_Carta

The English Bill of Rights, 1689

When James II was overthrown by the Glorious Revolution the Dutch stadholder William III of Orange-Nassau and his wife, Mary II of England were invited to be joint sovereigns of England.

****Scan or photo of the English Bill of Rights of 1689. | Author: Parliament of the United Kingdom | Public Domain | Wikimedia Commons

****Scan or photo of the English Bill of Rights of 1689. | Author: Parliament of the United Kingdom | Wikimedia Commons

The Bill of Rights was originally part of the invitation, informing the couple regarding the limitations that would be imposed on their powers. Later the same year, it was incorporated into English law. The Bill of Rights guaranteed the supremacy of Parliament over the monarch. It forbid cruel and unusual punishments, excessive bail and excessive fines.

Freedom of speech and free elections were also guaranteed, and a standing army in peacetime was forbidden without the explicit consent of Parliament. The Bill of Rights was influenced by the writings of the Liberal philosopher, John Locke (1632-1704).

The United States Constitution and Bill of Rights, 1789

The history of the Federal Constitution of the United States is an interesting one. It was preceded by the Articles of Confederation, which were written by the Second Continental Congress between 1776 and 1777, but it soon became clear that Confederation was too weak a form of union for a collection of states.

George Mason, one of the drafters of the Federal Constitution, believed that “such a government was necessary as could directly operate on individuals, and would punish those only whose guilt required it”, while another drafter, James Madison, wrote that the more he reflected on the use of force, the more he doubted “the practicality, the justice and the efficacy of it when applied to people collectively, and not individually.”

Finally, Alexander Hamilton, in his Federalist Papers, discussed the Articles of Confederation with the following words:

“To coerce the states is one of the maddest projects that was ever devised… Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself, a government that can exist only by the sword? Every such war must involve the innocent with the guilty. The single consideration should be enough to dispose every peaceable citizen against such government… What is the cure for this great evil? Nothing, but to enable the… laws to operate on individuals, in the same manner as those of states do.”

In other words, the essential difference between a confederation and a federation, both of them unions of states, is that a federation has the power to make and to enforce laws that act on individuals, rather than attempting to coerce states (in Hamilton’s words, “one of the maddest projects that was ever devised.”)

The fact that a confederation of states was found to be far too weak a form of union is especially interesting because our present United Nations is a confederation. We are at present attempting to coerce states with sanctions that are “applied to people collectively and not individually.”

The International Criminal Court, which we will discuss below, is a development of enormous importance, because it acts on individuals, rather than attempting to coerce states.

There are many historical examples of successful federations; but in general, unions of states based on the principle of confederation have proved to be too weak. Probably our best hope for the future lies in gradually reforming and strengthening the United Nations, until it becomes a federation.

In the case of the Federal Constitution of the United States, there were Anti-Federalists who opposed its ratification because they feared that it would be too powerful.

640px-James_Madison

*****Portrait of James Madison, one of the authors of the Federalist Papers, and the fourth President of the United States | Author: John Vanderlyn (1775–1852) | Wikimedia Commons

Therefore, on June 8, 1789, James Madison introduced in the House of Representatives a series of 39 amendments to the constitution, which would limit the government’s power. Of these, only amendments 3 to12 were adopted, and these have become known collectively as the Bill of Rights.

Of the ten amendments that constitute the original Bill of Rights, we should take particular notice of the First, Fourth and Sixth, because they have been violated repeatedly and grossly by the present government of the United States.

The First Amendment requires that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The right to freedom of speech and freedom of the press has been violated by the punishment of whistleblowers. The right to assemble peaceably has also been violated repeatedly and brutally by the present government’s militarized police.

The Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It is hardly necessary to elaborate on the U.S. Government’s massive violations of the Fourth Amendment. Edward Snowden’s testimony has revealed a huge secret industry carrying out illegal and unwarrented searches and seizures of private data, not only in the United States, but also throughout the world. This data can be used to gain power over citizens and leaders through blackmail. True democracy and dissent are thereby eliminated.

The Sixth Amendment requires that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

This constitutional amendment has also been grossly violated.

In the context of federal unions of states, the Tenth Amendment is also interesting. This amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”We mentioned above that historically, federations have been very successful.

******The European Union (EU) | Author: S. Solberg J. | Wikimedia Commons

******The European Union | Author: S. Solberg J. | Wikimedia Commons

However, if we take the European Union as an example, it has had some problems connected with the principle of subsidiarity, according to which as few powers as possible should be decided centrally, and as many issues as possible should be decided locally.

The European Union was originally designed as a free trade area, and because of its history commercial considerations have trumped environmental ones.

The principle of subsidiarity has not been followed, and enlightened environmental laws of member states have been declared to be illegal by the EU because they conflicted with free trade. These are difficulties from which we can learn as we contemplate the conversion of the United Nations into a federation.

The United States Bill of Rights was influenced by John Locke and by the French philosophers of the Enlightenment. The French Declaration of the Rights of Man (August, 1789) was almost simultaneous with the U.S. Bill of Rights.

http://en.wikipedia.org/wiki/Natural_and_legal_rights

http://en.wikipedia.org/wiki/John_Locke

http://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen

We can also see the influence of Enlightenment philosophy in the wording of the U.S. Declaration of independence (1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

Another criticism that can be leveled against the present government of the United States is that its actions seem to have nothing whatever to do with the consent of the governed, not to mention the violations of the rights to life, liberty and the pursuit of happiness implicit in drone kill lists.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

Kellogg-Briand Pact, 1928

World War I was a catastrophe that still casts a dark shadow over the future of humanity. It produced enormous suffering, brutalization of values, irreparable cultural loss, and a total of more than 37 million casualties, military and civilian.

Far from being the “war to end war”, the conflict prepared the way for World War II, during which nuclear weapons were developed; and these now threaten the existence the of human species and much of the biosphere.

After the horrors of World War I, the League of Nations was set up in the hope of ending the institution of war forever. However, many powerful nations refused to join the League, and it withered. Another attempt to outlaw war was made in 1928. in the form of a pact named after its authors, U.S. Secretary of State, Frank B. Kellogg and French Foreign Minister Astrid Briand.

The Kellogg-Briand Pact is formally called the General Treaty for the Renunciation of War as an Instrument of National Policy. It was ultimately ratified by 62 Nations, including the United States (by a Senate vote of 85 to 1). Although frequently violated, the Pact remains in force today, establishing a norm which legally outlaws war.

United Nations Charter, 1945

The Second World War was even more disastrous than the First. Estimates of the total number of people who died as a result of the war range between 50 million and 80 million. With the unspeakable suffering caused by the war fresh in their minds, representatives of the victorious allied countries assembled in San Fransisco to draft the charter of a global organization which they hoped would end the institution of war once and for all.

*******UN General Assembly hall | Author: Patrick Gruban, cropped and down sampled by Pine | Wikimedia Commons

*******UN General Assembly hall | Author: Patrick Gruban, cropped and down sampled by Pine | Wikimedia Commons

The Preamble to the United Nations Charter starts with the words:

“We , the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind; and to unite our strength to maintain international peace and security; and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest; and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims.”

Article 2 of the UN Charter requires that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

This requirement is somewhat qualified by Article 51, which says that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Thus, in general, war is illegal under the UN Charter. Self-defense against an armed attack is permitted, but only for a limited time, until the Security Council has had time to act. The United Nations Charter does not permit the threat or use of force in preemptive wars, or to produce regime changes, or for so-called “democratization”, or for the domination of regions that are rich in oil.

http://www.un.org/en/documents/charter/preamble.shtml

Clearly, the United Nations Charter aims at abolishing the institution of war once and for all; but the present Charter has proved to be much too weak to accomplish this purpose, since it is a confederation of the member states rather than a federation. This does not mean that that our present United Nations is a failure. Far from it!

********Headquarters of the UN in New York City | Author: Neptuul | Wikimedia Commons

********Headquarters of the UN in New York City | Author: Neptuul | Wikimedia Commons

The UN has achieved almost universal membership, which the League of Nations failed to do. The Preamble to the Charter speaks of “ the promotion of the economic and social advancement of all peoples”, and UN agencies, such as the World Health Organization, the Food and Agricultural Organization and UNESCO, have worked very effectively to improve the lives of people throughout the world.

Furthermore, the UN has served as a meeting place for diplomats from all countries, and many potentially serious conflicts have been resolved by informal conversations behind the scenes at the UN. Finally, although often unenforceable, resolutions of the UN General Assembly and declarations by the Secretary General have great normative value.

When we think of strengthening and reforming the UN, then besides giving it the power to make and enforce laws that are binding on individuals, we should also consider giving it an independent and reliable source of income. As it is, rich and powerful nations seek to control the UN by means of its purse strings: They give financial support only to those actions that are in their own interests.

A promising solution to this problem is the so-called “Tobin tax”, named after the Nobel-laureate economist James Tobin of Yale University. Tobin proposed that international currency exchanges should be taxed at a rate between 0.1 and 0.25 percent. He believed

that even this extremely low rate of taxation would have the beneficial effect of damping speculative transactions, thus stabilizing the rates of exchange between currencies. When asked what should be done with the proceeds of the tax, Tobin said, almost as an afterthought, “Let the United Nations have it.”

The volume of money involved in international currency transactions is so enormous that even the tiny tax proposed by Tobin would provide the United Nations with between 100 billion and 300 billion dollars annually.

By strengthening the activities of various UN agencies, the additional income would add to the prestige of the United Nations and thus make the organization more effective when it is called upon to resolve international political conflicts.

The budgets of UN agencies, such as the World Health Organization, the Food and Agricultural Organization, UNESCO and the UN Development Programme, should not just be doubled but should be multiplied by a factor of at least twenty.

With increased budgets the UN agencies could sponsor research and other actions aimed at solving the world’s most pressing problems: AIDS, drug-resistant infections diseases, tropical diseases, food insufficiencies, pollution, climate change, alternative energy strategies, population stabilization, peace education, as well as combating poverty, malnutrition, illiteracy, lack of safe water and so on.

Scientists would would be less tempted to find jobs with arms-related industries if offered the chance to work on idealistic projects. The United Nations could be given its own television channel, with unbiased news programs, cultural programs, and “State of the World” addresses by the UN Secretary General.

In addition, the voting system of the United Nations General Assembly needs to be reformed, and the veto power in the Security Council needs to be abolished.

Can we abolish the institution of war? Can we hope and work for a time when the terrible suffering inflicted by wars will exist only as a dark memory fading into the past? I believe that this is really possible. The problem of achieving internal peace over a large geographical area is not insoluble. It has already been solved. There exist today many nations or regions within each of which there is internal peace, and some of these are so large that they are almost worlds in themselves.

One thinks of China, India, Brazil, Australia, the Russian Federation, the United States, and the European Union. Many of these enormous societies contain a variety of ethnic groups, a variety of religions and a variety of languages, as well as striking contrasts between wealth and poverty. If these great land areas have been forged into peaceful and cooperative societies, cannot the same methods of government be applied globally?

Today, there is a pressing need to enlarge the size of the political unit from the nation-state to the entire world. The need to do so results from the terrible dangers of modern weapons and from global economic interdependence. The progress of science has created this need, but science has also given us the means to enlarge the political unit: Our almost miraculous modern communications media, if properly used, have the power to weld all of humankind into a single supportive and cooperative society.

john_avery*John Scales Avery, Ph.D., who was part of a group that shared the 1995 Nobel Peace Prize for their work in organizing the Pugwash Conferences on Science and World Affairs, is a member of the TRANSCEND Network and Associate Professor Emeritus at the H.C. Ørsted Institute, University of Copenhagen, Denmark.

He is chairman of both the Danish National Pugwash Group and the Danish Peace Academy and received his training in theoretical physics and theoretical chemistry at M.I.T., the University of Chicago and the University of London. He is the author of numerous books and articles both on scientific topics and on broader social questions. His most recent book is Civilization’s Crisis in the 21st Century http://www.learndev.org/dl/Crisis21-Avery.pdf.

Images:

**Agricultural calendar from a manuscript of Pietro Crescenzi, written c. 1306 | Artist: Maître du Boccace de Genève Link back to Creator infobox template wikidata:Q3303311 | Source/Photographer: http://ecole.orange.fr/college.saintebarbe/moyenage/travaux.htm#Saison | Wikimedia Commons

**Agricultural scene from Ancient Egypt. | Author: Norman de Garis Davies, Nina Davies (2-dimensional 1 to 1 Copy of an 15th century BC Picture) | Wikimedia Commons.

***The Magna Carta (originally known as the Charter of Liberties) of 1215, written in iron gall ink on parchment in medieval Latin, using standard abbreviations of the period, authenticated with the Great Seal of King John. The original wax seal was lost over the centuries.[1] This document is held at the British Library and is identified as “British Library Cotton MS Augustus II.106”.[2] | Original authors were the barons and King John of England. Uploaded by Earthsound. | Wikimedia Commons

****Scan or photo of the English Bill of Rights of 1689. | Author: Parliament of the United Kingdom | Public Domain | Wikimedia Commons

*****Portrait of James Madison, one of the authors of the Federalist Papers, and the fourth President of the United States | Author: John Vanderlyn (1775–1852) | Wikimedia Commons

******The European Union (EU) | Author: S. Solberg J. | Wikimedia Commons

*******UN General Assembly hall | Author: Patrick Gruban, cropped and down sampled by Pine | Wikimedia Commons

********Headquarters of the UN in New York City | Author: Neptuul | Wikimedia Commons

2015 Human Wrongs Watch

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