The Future of International Law (Part III)


Human Wrongs Watch

By John Scales Avery*

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. 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.

Photo: Andux | Source: UN

Photo: Andux | Source: UN

Part I dealt with: What is law?, Magna Carta, 1215, The English Bill of Rights, 1689, The United States Constitution and Bill of Rights, 1789, Kellogg-Briand Pact, 1928, and United Nations Charter, 1945.  

Part II dealt with: International Court of Justice, 1946, Nuremberg Principles, 1947, The Universal Declaration of Human Rights, 1948, The Geneva Conventions, 1949, and The Nuclear Non-Proliferation Treaty, 1968. 

Part III: The Biological Weapons Convention, 1972

During World War II, British and American scientists investigated the possibility of using smallpox as a biological weapon.

However, it was never used, and in 1969 President Nixon officially ended the American biological weapons program, bowing to the pressure of outraged public opinion.

In 1972, the United States, the United Kingdom and the Soviet Union signed a Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.

Usually this treaty is known as the Biological Weapons Convention (BWC), and it has now been signed by virtually all of the countries of the world.

However, consider the case of smallpox: A World Health Organization team led by D.A. Henderson devised a strategy in which cases of smallpox were isolated and all their contacts vaccinated, so that the disease had no way of reaching new victims.

Descriptions of the disease were circulated, and rewards offered for reporting cases. The strategy proved to be successful, and finally, in 1977, the last natural case of smallpox was isolated in Somalia.

After a two-year waiting period, during which no new cases were reported, WHO announced in 1979 that smallpox, one of the most frightful diseases of humankind, had been totally eliminated from the world.

This was the first instance of the complete eradication of a disease, and it was a demonstration of what could be achieved by the enlightened use of science combined with international cooperation. The eradication of smallpox was a milestone in human history.

Weapons collected in Libya to prevent arms proliferation. Photo: Giovanni Diffidenti | Source: UN

Weapons collected in Libya to prevent arms proliferation. Photo: Giovanni Diffidenti | Source: UN

It seems that our species is not really completely wise and rational; we do not really deserve to be called “Homo sapiens”. Stone-age emotions and stone-age politics are alas still with us. Samples of smallpox virus were taken to“carefully controlled” laboratories in the United States and the Soviet Union.

Why? Probably because these two Cold War opponents did not trust each other, although both had signed the Biological Weapons Convention. Each feared that the other side might intend to use smallpox as a biological weapon. There were also rumors that unofficial samples of the virus had been saved by a number of other countries, including North Korea, Iraq, China, Cuba, India, Iran, Israel, Pakistan and Yugoslavia.

Chemical Weapons Convention, 1997

On the 3rd of September, 1992, the Conference on Disarmament in Geneva adopted a Convention on the Prohibition of Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction.

This agreement, which is usually called the Chemical Weapons Convention (CWC), attempted to remedy some of the shortcomings of the Geneva Protocol of 1925. The CWC went into force in 1997, after Hungary deposited the 65th instrument of ratification.

Inspectors from the Organisation for the Prohibition of Chemical Weapons (OPCW) inventory a stockpile of 22mm chemical artillery projectiles (file photo). Credit: OPCW | Source: UN

Inspectors from the Organisation for the Prohibition of Chemical Weapons (OPCW) inventory a stockpile of 22mm chemical artillery projectiles (file photo). Credit: OPCW | Source: UN

The provisions of Article I of the CWC are as follows:

  1. Each State Party to this convention undertakes never under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparation to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party in accordance with the provisions of this Convention.

  1. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located any place under its jurisdiction or control, in accordance with the provisions of this Convention.
  2. Each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of this Convention.
  3. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.
  4. Each State Party undertakes not to use riot control agents as a method of warfare.

The CWC also makes provision for verification by teams of inspectors, and by 2004, 1,600 such inspections had been carried out in 59 countries. It also established an Organization for the Prevention of Chemical Warfare.

All of the declared chemical weapons production facilities have now been inactivated, and all declared chemical weapons have been inventoried. However of the world’s declared stockpile of chemical warfare agents (70,000 metric tons), only 12% have been destroyed. One hopes that in the future the CWC will be ratified by all the nations of the world and that the destruction of stockpiled chemical warfare agents will become complete.

Unexploded ordnance (UXO) in and around the Goma-Kibati area of the Democratic Republic of the Congo (DRC) being cleared. UN Photo/Sylvain Liechti

Unexploded ordnance (UXO) in and around the Goma-Kibati area of the Democratic Republic of the Congo (DRC) being cleared. UN Photo/Sylvain Liechti

Mine Ban Treaty, 1999

In 1991, six NGOs organized the International Campaign to Ban Landmines, and in 1996, the Canadian government launched the Ottawa process to ban landmines by hosting a meeting among like-minded anti-landmine states.

A year later, in 1997, the Mine Ban Treaty was adopted and opened for signatures. In the same year, Jody Williams and the International Campaign to ban Landmines were jointly awarded the Nobel Peace Prize.

After the 40th ratification of the Mine Ban Treaty in 1998, the treaty became binding international law on the 1st of March, 1999. The Ottawa Treaty functions imperfectly because of the opposition os several militarily powerful nations, but nevertheless it establishes a valuable norm, and it represents an important forward step in the development of international law.

The International Criminal Court in The Hague (ICC/CPI), Netherlands. | Author: Vincent van Zeijst | Wikimedia Commons

The International Criminal Court in The Hague (ICC/CPI), Netherlands. | Author: Vincent van Zeijst | Wikimedia Commons

International Criminal Court, 2002 

In 1998, in Rome, representatives of 120 countries signed a statute establishing an International Criminal Court (ICC), with jurisdiction over the crime og genocide, crimes against humanity, war crimes and the crime of aggression.

Four years were to pass before the necessary ratifications were gathered, but by Thursday, April 11, 2002, 66 nations had ratified the Rome agreement, 6 more than the 60 needed to make the court permanent. It would be impossible to overstate the importance of the ICC.

At last, international law acting on individuals has become a reality! The only effective and just way that international laws can act is to make individuals responsible and punishable, since (in the words of Alexander Hamilton) “To coerce states is one of the maddest projects that was ever devised.”

At present, the ICC functions very imperfectly because of the bitter opposition of several powerful countries, notable the United States. U.S. President George W. Bush signed into law the American Servicemembers Protection Act of 2002, which is intended to intimidate countries that ratify the treaty for the ICC. The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague. This provision, dubbed the “Hague invasion clause,” has caused a strong reaction from U.S. allies around the world, particularly in the Netherlands.

http://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law

Despite the fact that the ICC now functions so imperfectly, it is a great step forward in the development of international law. It is there and functioning. We have the opportunity to make it progressively more impartial and to expand its powers.

Photo: Guy Oliver/IRIN. There are an estimated 875 million small arms in circulation

Photo: Guy Oliver/IRIN. There are an estimated 875 million small arms in circulation

Arms Trade Treaty, 2013

On April 2, 2013, a historic victory was won at the United Nations, and the world achieved its first treaty limiting international trade in arms. Work towards the Arms Trade Treaty (ATT) began in the Conference on Disarmament in Geneva, which requires a consensus for the adoption of any measure.

Over the years, the consensus requirement has meant that no real progress in arms control measures has been made in Geneva, since a consensus among 193 nations is impossible to achieve.

To get around the blockade, British U.N. Ambassador Mark Lyall Grant sent the draft treaty to Secretary-General Ban Ki-moon and asked him on behalf of Mexico, Australia and a number of others to put the ATT to a swift vote in the General Assembly, and on Tuesday, April 3, 2013, it was adopted by a massive majority.

Among the people who have worked hardest for the ATT is Anna Macdonald, Head of Arms Control at Oxfam. The reason why Oxfam works so hard on this issue is that trade in small arms is a major cause of poverty and famine in the developing countries.

On April 9, Anna Macdonald wrote: “Thanks to the democratic process, international law will for the first time regulate the 70 billion dollar global arms trade. Had the process been launched in the consensus-bound Conference on Disarmament in Geneva, currently in its 12th year of meeting without even being able to agree on an agenda, chances are it would never have left the starting blocks…”

The passage of the Arms Trade Treaty by a majority vote in the UN General Assembly opens new possibilities for progress on other seemingly-intractable issues.   In particular, it gives hope that a Nuclear Weapons Convention might be adopted by a direct vote on the floor of the General Assembly.

The adoption of the NWC, even if achieved against the bitter opposition of the nuclear weapon states, would make it clear that the world’s peoples consider the threat of an all-destroying nuclear war to be completely unacceptable.

Hibakusha around the world: 50 places devastated by nuclear weapons, nuclear accidents or nuclear pollution | IPPNW

Hibakusha around the world: 50 places devastated by nuclear weapons, nuclear accidents or nuclear pollution | IPPNW

We can pass a Nuclear Weapons Convention in the UN General Assembly

A convention banning nuclear weapons could be adopted by a majority vote on the floor of the UN General Assembly, following the precedent set by the Arms Trade Treaty. Indeed, this is the path forward advocated by the International Campaign to Abolish Nuclear Weapons (ICAN).

In the case of a Nuclear Weapons Convention, world public opinion would have especially great force. It is generally agreed that a full-scale nuclear war would have disastrous effects, not only on belligerent nations but also on neutral countries. Mr. Javier Pérez de Cuéllar, former Secretary-General of the United Nations, emphasized this point in one of his speeches:

“I feel”, he said, “That the question may justifiably be put to the leading nuclear powers:   by what right do they decide the fate of humanity? From Scandinavia to Latin America, from Europe and Africa to the Far East, the destiny of every man and woman is affected by their actions. No one can expect to escape from the catastrophic consequences of a nuclear war on the fragile structure of this planet…”

“Like supreme arbiters, with our disputes of the moment, we threaten to cut off the future and to extinguish the lives of innocent millions yet unborn. There can be no greater arrogance. At the same time, the lives of all those who lived before us may be rendered meaningless; for we have the power to dissolve in a conflict of hours or minutes the entire work of civilization, with the brilliant cultural heritage of humankind.”

Source: UN

Source: UN

Racism, Colonialism and Exceptionalism

A just system of laws must apply equally and without exception to everyone. If a person, or, in the case of international law, a nation, claims to be outside the law, or above the law, then there is something fundamentally wrong.

For example, when U.S. President Obama said in a 2013 speech, “What makes America different, what makes us exceptional, is that we are dedicated to act”, then thoughtful people could immediately see that something was terribly wrong with the system.

If we look closely, we find that there is a link between racism, colonialism and exceptionalism. The racist and colonialist concept of “the white man’s burden”is linked to the Neo-Conservative self-image of benevolent (and violent) interference in the internal affairs of other countries.

http://www.countercurrents.org/avery101013.htm

https://mail.google.com/mail/?shva=1#inbox/14cb400a8d1d4b4d

Climate change is a growing cause of displacement in Africa, where some areas have been devastated by drought. Photo: UNHCR/B. Bannon

Climate change is a growing cause of displacement in Africa, where some areas have been devastated by drought. Photo: UNHCR/B. Bannon

The Oslo Principles on Climate Change Obligation, 2015

The future of human civilization and the biosphere is not only threatened by thermonuclear war: It is also threatened by catastrophic climate change.

If prompt action is not taken to curb the use of fossil fuels: if the presently known reserves of fossil fuels are not left in the ground, then there is a great danger that we will pass a tipping point beyond which human efforts to stop a catastrophic increase in global temperatures will be useless because feedback loops will have taken over.

There is a danger of a human-initiated 6th geological extinction event, comparable with the Permian-Triassic event, during which 96 percent of marine species and 70 percent of terrestrial vertebrates became extinct.

Recently there have been a number of initiatives which aim at making the human obligation   to avert threatened environmental mega-catastrophes a part of international law.

One of these initiatives can be seen in the proposal of the Oslo Principles on Climate Change Obligations; another is the Universal Declaration of the Rights of Mother Earth; and a third can be found in the concept of Biocultural Rights. These are extremely important and hopeful initiatives, and they point to towards the future development of international law for which we must strive.

https://www.transcend.org/tms/2015/04/oslo-principles-on-global-climate-change-obligations/

https://www.transcend.org/tms/2015/04/climate-change-at-last-a-breakthrough-to-our-catastrophic-political-impasse/

http://www.commondreams.org/news/2015/04/14/lawsuit-out-love-unprecedented-legal-action-accuses-dutch-government-failing-climate

http://www.elgaronline.com/view/journals/jhre/6-1/jhre.2015.01.01.xml

http://www.greenworldrising.org/?mc_cid=03b6f371b5&mc_eid=a3a3c5de94

http://therightsofnature.org/universal-declaration/

Image: A white poppy among red poppies placed on the Waitati cenotaph on Anzac Day, 2009 | The white one is promoted by 'White Poppies for Peace', a New Zealand peace group | Author: Nankai | Wikimedia Commons

Image: A white poppy among red poppies placed on the Waitati cenotaph on Anzac Day, 2009 | The white one is promoted by ‘White Poppies for Peace’, a New Zealand peace group | Author: Nankai | Wikimedia Commons

Hope for the future, and responsibility for the future

We, the people of the world, not only have the facts on our side; we also have numbers on our side.

The vast majority of the world’s peoples long for peace. The vast majority long for abolition of nuclear weapons, and for a world of kindness and cooperation, a world of respect for the environment.

No one can make these changes alone, but together we can do it.

Together, we have the power to choose a future where international anarchy, chronic war and institutionalized injustice will be replaced by democratic and humane global governance, a future where the madness and immorality of war will be replaced by the rule of law.

We need a sense of the unity of all mankind to save the future, a new global ethic for a united world. We need politeness and kindness to save the future, politeness and kindness not only within nations but also between nations.

To save the future, we need a just and democratic system of international law; for with law shall our land be built up, but with lawlessness laid waste.

Read: 

The Future of International Law (Part I)

The Future of International Law (Part II)

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.

Image: A white poppy among red poppies placed on the Waitati cenotaph on Anzac Day, 2009 | The white one is promoted by ‘White Poppies for Peace’, a New Zealand peace group | Author: Nankai | Wikimedia Commons

2015 Human Wrongs Watch

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