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...The Shock of the New V The Things that Matter
I INTRODUCTION
Until recently, the subject of international law remained in the margins. It would not have been an area which would have detained many lawyers who trained at this Law School, at least in their day-to-day practice.
When I was invited to give this year's Melbourne Law School Alumni lecture, late in 2004, issues of international law were already much in the air, certainly in Britain, and also in Australia. The Convention relating to the Status of Refugees, (1) the Kyoto Protocol to the United Nations Framework Convention on Climate Change (2) and the legality of the war in Iraq are issues that were receiving considerable attention. But I doubt that anyone could have imagined that the run-up to Britain's May 2005 General Election would be defined by arcane issues of international law: did the authorisation to use force against Iraq under Security Council Resolution 678 (3) of 1991 revive in March 2003? Was the British Prime Minister entitled to determine that Iraq was in material breach of its Security Council obligations? Did the British Prime Minister mislead his Cabinet and Parliament by failing to make available his Attorney-General's legal advice of 7 March 2003?
For many, the defining and iconic moment in the British election may well be the eloquent concession speech given by Reg Keys, whose son was killed on active duty in Iraq. With the Prime Minister standing directly behind him, Mr Keys explained what had caused him to engage in active politics: If the war had been just I would have been grieving and not campaigning. If weapons of mass destruction had been found in Iraq then I would not have come to Sedgefield, to the Prime Minister's stronghold, to challenge him on its legality. (4) Who would have imagined that a leading British newspaper such as The Guardian would send a reporter off to Fishpool Street in the town of St Albans to enquire of each resident whether the publication of the Attorney-General's advice would affect his or her vote? (5) Or that the more populist Mail on Sunday would commission and then publish opinion polls on the legality of the war, and the public's views as to the likely reasons for the Attorney-General's apparent change of mind? (6)
Yet it is now clear that Iraq and issues of legality--both the substance of the legal advice and the circumstances in which it was given--did have a significant impact on the outcome of the election, causing Labour to lose between 20 and 30 parliamentary seats. Not necessarily because of a great attachment to the legal issues themselves, but because of the manner in which political and legal issues became interwoven with the question of integrity and trust.
How did this come about? No doubt the full story will take time to be revealed. There will be twists and turns. Surprises will emerge. Final judgment will have to be suspended. What we do know is that Iraq and international law became an issue in the British election because of an unlikely conjunction of circumstances and individuals: the election of an American President with an abiding scepticism of global rules; the extraordinary and awful events of 11 September 2001 in New York and Washington; the supposed 'special relationship' between the United States and Britain; and, in Britain, the replacement of Cabinet with a new quasi-presidential form of decision-making. What are the consequences of all this? Is the international legal order weakened or strengthened?
II THE DEVELOPMENT OF INTERNATIONAL LAW--THE BEGINNINGS OF A RULES-BASED SYSTEM
Like every story this one needs some background. In this case it begins in August 1941, on a warship off the coast of Newfoundland, at a meeting between US President Franklin Delano Roosevelt and British Prime Minister Winston Churchill. It is a time of great challenge for Britain and the US, yet these two men decide that what they need to do they need to do is draw up a blueprint for the new international order once the Nazis have been vanquished. What is needed is a new rules-based system, to replace the existing arrangements that allowed a state do whatever was not expressly prohibited by international law. Since not much was prohibited, there was a great deal states could do. They could wage war without restriction. They could commit genocide against their own populations. They could torture detainees. That was the world of the 1930s.
Roosevelt and Churchill set out to change that. They drafted a one page document--the Atlantic Charter (7)--by which they intended to make known, as they put it, 'certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world'. (8) The Atlantic Charter was short and visionary and identified eight principles, revolving around three key pillars reflected in the Charter of the United Nations: a general obligation on states to refrain from the use of force, except in self-defence or where the UN Security Council or a regional body has authorised them to use force; (9) a commitment to human rights, to maintain the 'inherent dignity' (10) and the 'equal and inalienable rights' (11) of all members of the human family; and an undertaking to promote economic liberalisation through the adoption of free trade rules and related international obligations in the fields of foreign investment and intellectual property.
These three pillars have remained in place for the last 60 years. Underlying them was a commitment to the international rule of law. Roosevelt and Churchill committed themselves to recasting the eight principles of the Atlantic Charter into binding legal instruments. And this they did, with later assistance from Truman and Attlee and Australian Prime Minister Robert Menzies. In a remarkable period between 1941 and 1949 the modern system of international law was put in place through a series of far-reaching treaties which have now received very broad acceptance. In the spring of 1945, 51 states agreed on the creation of the UN at San Francisco, crystallising in law the modern rules governing the use of force and promoting human rights. That was followed by the UN General Assembly's Universal Declaration of Human Rights (12)--Eleanor Roosevelt's baby--which in turn led to the International Covenant on Civil and Political Rights (13) and the International Covenant on Economic, Social and Cultural Rights, (14) to regional treaties like the European Convention for the Protection of Human Rights and Fundamental Freedoms, (15) and to the Human Rights Act 1998 (UK) which incorporated the European Convention on Human Rights into English law, a singular achievement of the Prime Minister's first government.
The day after the Universal Declaration was adopted, the General Assembly agreed on the world's first human rights treaty, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. (16) It was followed by other specialised human rights treaties, such as the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (17) which obliged its parties to prosecute or extradite torturers (18) and which, in 1998, did away with Senator Pinochet's right to claim immunity before the English courts. (19) By 1948 the Allies had also agreed on other new rules to stop individuals doing nasty things in the name of the state: the Nuremberg Charter (20) gave birth to a new field of international criminal law. This would eventually lead to the Yugoslav (21) and Rwandan tribunals (22) and then--also in 1998, it turns out that was a big year for international law--to the Rome Statute of the International Criminal Court. (23) In the same post-war period, the US and Britain led international efforts to negotiate the four Geneva Conventions (24) on the law of armed conflict, including Geneva Convention III on the treatment of prisoners of war ('POWs'). This is the same instrument that was to become the centre of so much attention in relation to events in Guantanamo, Afghanistan and Abu Ghraib. (25)
Developments in international law were no less far-reaching in the economic field: the Bretton Woods Agreements created the World Bank and the International Monetary Fund in 1944. (26) In 1947 agreement was reached on the General Agreement on Tariffs and Trade (27)--the GATT--the world's first global free trade rules and the parent of today's World Trade Organization. By any standard, these were remarkable achievements in a very short period of time.
The new rules-based system initiated by the Atlantic Charter was not altruism at play. It reflected a view that international rules would promote Anglo-American interests, serve as a bulwark against the Soviet model, and emphasise values to be marshalled against Nazi and fascist threats. But the simple point is that international rules were seen as creating opportunities, not imposing constraints. The Atlantic Charter had an immediate and far-reaching impact. Writing in his autobiography, Nelson Mandela describes the Atlantic Charter as reaffirming his faith in human dignity: 'some in the west saw the Charter as empty promises', he wrote, but not those of us in Africa. Inspired by the Atlantic Charter and the fight of the Allies against tyranny and aggression, the ANC created its own charter ... which called for full citizenship for all Africans, the right to buy land and the repeal of all discriminating legislation. (28) Over the next 60 years the principles set forth in the Atlantic Charter defined a new international order. A great number of international agreements have been adopted since then, touching on issues that affect each and every one of us very directly. Trade. Investment. Commerce. Air transport. Oceans. Boundaries. Human rights. The great majority of these rules are not controversial. They work efficiently and well. They establish the minimum standards necessary for cooperation in an increasingly interdependent world. The emergence of this great body of rules reflects a silent global revolution, and most people are blissfully unaware quite how much international law there is. This does raise serious issues about accountability and legitimacy in international law-making--it is a matter of real concern that in Britain treaties are generally not debated by many legislatures, unless they concern an issue of European Community law. By all accounts there was no parliamentary debate about the WTO agreements. But these are issues for another time.
Nor would I wish to leave you with...
NOTE: All illustrations and photos
have been removed from this article.
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