International Law
Universality of International Law
Srinivas Atreya 519 th 4 Semester
Introduction In this shrinking world, states are becoming increasingly interdependent and interconnected a development that has affected international law. As history indicates early international law dealt with bilateral relations between autonomous states and the principal subjects of international law until well into this century were diplomatic relations, war, treaties and the law of the sea. However, with the turn of events in the recent century, one of the most significant developments in international law during the twentieth century has been the expanded role played by multilateral treaties addressed to the common concerns of states. Often they clarify and improve rules of international law through the process of rendering them in binding written agreements. These treaties also promote the coordination of uniform state behavior in a variety of areas. International organizations, themselves the creatures of multi lateral treaties, have also assumed increasing prominence in the last half of this century. They have contributed to the coordination and facilitation of contemporary international relations on the basis of legal principles. In this respect, the international legal order applies throughout the whole of the international community of states and in this sense has international character. But for individual rules of international law the position is different. Some rules which apply to all the states are a re called universal international law.
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The Concept of Universality In order to cope with the manifold changes that have taken place and are taking place with
accelerating rhythm, rhythm, the need is to evolve a ‘Universal international international law, a concept that has gained popularity over the past few years probably as a result of more intensely perceived ideological division in the world, the insistence on a common set of values as a pre condition or a viable legal order, and, more recently, the challenge to the traditional body of doctrine and precept emanating from new states in Asia and Africa.
The basic level, and corresponding to what woul d be regarded as the ‘classic ’ understanding of the notion, universality of international law means that there exists on on the global scale an international law which is valid for and binding on all states.
Universality thus understood as global validity and applicability excludes the possibility neither of regional (customary) international law nor of treaty regimes which create particular legal sub-systems, nor does it rule out the dense web of bilateral legal ties between states. All of t hese hese particular rules remain ‘embedded’ , as it were, in a fundamental universal body, or core, of international law. In this sense, international law is all-inclusive.
At a second level, a wider understanding of universality responds to the question as to whether international law can be perceived as constituting an organized whole, a coherent
legal system, or whether whether it remains no more than a ‘ bric-à-brac ’, or a random collection of norms, or webs of norms, with little interconnection. This question is probably best viewed
in terms of the ‘ unity’ or ‘coherence’ of international law and strong connotations of predictability and legal security that will be attached attac hed to such second-level universality.
At a third level, universality may be taken as referring to an actual or perceived (changing) nature of the international legal system in line with the tradition of international legal thinking known as ‘universalism’. A Universalist approach to international law in this sense expresses the conviction that it is possible, desirable, indeed urgently necessary (and for
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many, a process already under way), to establish a public order on a global scale, a common legal order for mankind as a whole.
International law, according to this understanding, is not merely a tool-box of rules and principles destined to govern inter-state coordination and cooperation but rather it
constitutes a ‘comprehensive blueprint for social life’ , as Christian Tomuschat has called it.
Universalism thus understood goes far beyond the addition of a layer of what Wolfgang
Friedmann has termed the ‘international law of cooperation’ to the body of the law. The concept implies the expansion of international law beyond the inter-state sphere, particularly by endowing individuals with international personality, establishing a hierarchy of norms, a value- oriented approach, a certain certain ‘verticalization’ ‘verticalization’ of interna tional law, de-emphasizing consent in law-making, introducing international criminal law, by the existence of institutions and procedures for the enforcement of collective interests at the international level and ultimately, the emergence of an international community, perceived as a legal community.
The unified national laws of the character of jus of jus gentium and the laws of human rights which is of the character of jus of jus natural in roman law, both constituting a part of the law of the world community which may be designated as World law, at the same time constitute a part of the international law. Important strides have been made in this respect to introduce laws which are universal in nature and treaties like the UN Charter, UN Convention on Climate Change, World Trade Organization, and Nuclear Non Proliferation Treaty are among the various instances of universalization of international law. The traditional, juridical and individualistic conception of international law is being slowly but steadily transformed into the law of social interdependence.
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Universal Jurisdiction
Universal jurisdiction or universality principle is a principle in public international law that is closely linked to the idea that certain international norms are erga omnes, omnes, or owed to the entire world community, as well as the concept of jus of jus cogens – that certain international law obligations are binding on all states and cannot be modified by treaty. The basic essence of the principle being states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against a gainst all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.
The concept gained prominence with Belgium's 1993 "law of universal jurisdiction", which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law, entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium 1. Furthermore, the creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.
There are various facets related to the concept of universal jurisdiction which deal with questions related to immunity of state official and Extraterritorial jurisdiction
Immunity
In case of immunity to state officials, the International Court of Justice in the ICJ Arrest Warrant Case concluded that State officials did have immunity under international law
1
Hans Köchler, "The judgment of the International Cour t of Justice (2002) and its implications f or the exercise of universal jurisdiction by national courts: the case of Belgium," in: Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003, pp. 85 –101. ISBN 3-211-00795-4
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while serving in office. The court also concluded that immunity was not granted to State officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective States. The court stated that when abroad, State officials enjoy full immunity from arrest in another State on criminal charges, including charges of war crimes or crimes against humanity. The ICJ did qualify its conclusions, stating that State officers "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.
In respect to this case, it was explained that “If one considers the SCSL as an international legal person (like some treaty-based international organizations), it would arguably be bound by customary law, including international law on immunities. As to Sierra Leone, it might be argued that what Sierra Leone could not have done unilaterally, it cannot do by participating in the creation of an international court. However, there is one relevant difference between the facts of the Arrest Warrant case and the indictment of Mr. Taylor. The Security Council's support for the Court and its express call to Liberia to cooperate (even if not under Chapter VII) give indictments by the SCSL a degree of legitimacy that unilateral state action lacks. The questions of the international legal status of the SCSL, its obligations under international law and any remaining obligations of the founding entities are complicated by the hybrid nature of the Court. The SCSL is one of a new brand of internationalized criminal bodies, composed of both international and national judges and applying international as well as national law. It shares these features with the Serious Crimes Panels in the District Court of Dili (East-Timor), the Panels in the Courts of Kosovo, and the Extraordinary Chambers in the Courts of Cambodia. Each of these courts is located between the international and national legal order and principles of international law that were developed for an interstate context may not apply automatically in regard of them. ... The retention of the immunity of former heads of states for acts committed in their official capacity has been one of the most critiqued parts of the ICJ judgment. The judgment also leaves open some room for doubt as to what exactly are acts committed in an official capacity. ... [and] the practice of States and courts in this area remains fluid and clear
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standards have not yet emerged, but the immunity of high States' officials is gradually being reduced.”2
Extraterritorial Jurisdiction
Extraterritorial jurisdiction is a concept which finds its roots in concept of universality and is in the present world scenario considered as an important feature of contemporary international law. Justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad even if the act the national committed was not illegal under the law of the territory in which an act has been committed. As instance of extraterritorial jurisdiction is the American PROTECT Act of 2003 which asserts jurisdiction over American citizens traveling abroad. Numerous penal systems across the world including India exercise similar jurisdictional conditionality on its citizens.
Conclusion
There are various issues of global importance which require understanding and action beyond borders. With the advent of globalization, international trade and commerce along with international diplomacy has witnessed a steep rise increasing and widening the scope of international law. With greater interaction between world states, the issues which concern them also take on a global character.
Perhaps one of the most salient of these concerns is to protect the earth’s environment . While many environmentally harmful activities result only in local damage, others have an impact far beyond the boundaries of the states in which they take place and may cause damage to the earth's environment as a whole. For example, the discharge of some substances into the atmosphere may adversely affect the global climate or the ozone layer. Discharges that pollute the common spaces of the oceans may also have a global impact and 2
Cesare P.R. Romano and André Nollkaemper. The Arrest Warrant Against The Liberian President, Charles Taylor , on the website of the American Society of Internation law, June 2003
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thus raise similar concerns. Current threats to the environment highlight the importance of establishing norms to control activities that endanger all nations and peoples, regardless of where the activities take place. Acts of international terrorism, the commission of international crimes (such as genocide and war crimes), and the use of nuclear weapons pose similar global problems and have been on the international agenda for some time. To resolve such problems, it may be necessary to establish new rules that are binding on all subjects of international law regardless of the attitude of any particular state. Unless all states are bound, an exempt state could act as a spoiler for the entire international community. Thus, states that are not bound by international laws designed to combat universal environmental threats could become havens for the harmful activities concerned. Such states might have an economic advantage over states that are bound because they would not have to bear the costs of the requisite environmental protection. They would be free riders on the system and would benefit from the environmentally protective measures introduced by others at some cost. Furthermore, the example of such free riders might undermine the system by encouraging other states notto participate and could thus derail the entire effort. Similarly, in the case of international terrorism, one state that serves as a safe haven for terrorists can threaten all. War crimes, apartheid or genocide committed in one state might threaten international peace and security worldwide. Consequently, for certain circumstances it may be incumbent on the international community to establish international law that is binding on all states regardless of any one state's disposition. Unfortunately, the traditions of the international legal system appear to work against the ability to legislate universal norms. States are said to be sovereign, thus able to determine for themselves what they must or may do. State autonomy continues to serve the international system well in traditional spheres of international relations. The freedom of states to control their own destinies and policies has substantial value as it permits
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diversity and the choice by each state of its own social priorities. Few, if any, states favor a world government that would dictate uniform behavior Indeed, international law has undoubtedly entered a stage at which it does not exhaust itself in correlative rights and obligations running between states, but also incorporates common interests of the international community as a whole, including not only states but all human beings. In so doing, it begins to display more and more features which do not fit
into the ‘civilist’, bilateralist structure of the traditional law. In other words, it is on its way to being a true public international law. The challenge however, is to maintain a sensitive and coherent balance between state sovereignty and inter-national universality of law. Law makers and bureaucrats now have an added responsibility to understand the finer processes of international law in view of the changing world scenario both in economic and political spheres and cater to the changing demands of the world.
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Bibliography Books
Priniciples of Public International Law, Ian Brownlie, Oxford, 6 th Edition International Law and Human Human rigthts, Dr S K Kapoor, CLA, 17 th Edition Oppenheim's International Law, Volume 1 Peace, 9 th Edition
Articles
Universal international law by By Jonathan I. Charney Universality of International Law from the Perspective of a Practitioner by Bruno Simma
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