Class5, Oct.09: International Law and Norm Setting
Wenyi Lai
Oct. 15, 2000
Introduction
¡E The structure of the Class5:
1.The lecture gave by Ambassador and Permanent Representative of Sri Lanka to the
United Nations¡VJohn De Saram.
2. The questions by Instructor Kamal and the answers by Ambassador Saram.
3. Discussion of lecturer and class.
¡E The lecture
1. International Law at the UN: Although international law is dry and boring, it is very
important for all of us. In many forums, Charter of the UN and also in constitution,
international law is the critical and fundamental factor to establish international
organizations. The UN system adopted the parliamentary process to proceed. They all
must obey the regulation of international law.
2. The conflicts between sovereignty of states and international law: In Article 2, Section
7 of the UN Charter, ¡§Nothing contained in the present Charter will authorize the United
Nations to intervene in matters which are essentially within the domestic jurisdiction . . .
,¡¨ And the essential spirits of traditional international law respect each states¡¦
sovereignty. But nowadays, the more frequent contact and global integration made the
distinction of international and domestic affairs vague. We must recognize that the
governments are unlikely to accept the jurisdiction other than their own states¡¦ court if
the jurisdiction doesn¡¦t correspond to their interests. The conflicts continue.
3. The issues of Human Rights: The most celebrated such a statement in the field of
human rights is the Universal Declaration of Human Rights, approved by General
Assembly on Dec. 10, 1948. The UN has relied on investigation, discussion, publicity,
and censure to improve the human rights implementation. These have occurred in a
variety of forums, including the General Assembly and its Third Committee, the
ECOSOC, the commission of Human Rights. But it is difficult to protect human rights by
international law because it related to the intervention to the domestic jurisdiction.
4. Individual international criminal responsibility: It is not easy to convict the individual
international crime. First, only states¡Vnot individuals or organizations¡Vcan is party to a
dispute before the International Court of Justice. Second, the individual crime is under
each state¡¦s domestic jurisdiction.
¡E Q. & A. and Discussion
1. Yugoslavia issue: The tribunal international law is supposed to reach its jurisdiction
on the basis of international law rather than international politics. But State sovereignty
power and international law always have conflicts. In 1999Yugoslavia case, some argue
that NATO¡¦s ¡§aggression¡¨ to Serbia has violated the international law. The winner,
NATO, put the political force into the tribunal against the loser. In real worlds, not only
international law, but also the tribunals apply international convention, custom in
jurisdiction. In Yugoslavia case, preventing human rights from violation is also
important for international society.
2. Iraq issue: How to force Iraq to pay for the war crime? In this kind of situation,
political settlement is necessary. In some cases, such as French atmospheric nuclear
testing in the South Pacific and nuclear power plant pollution, negotiation among states
is very important in international community.
3. Sri Lanka issue: Sri Lanka faces the harsh terrorist problem. If Sri Lanka invited the
UN to settle the conflicts, it would contribute to a political problem. The better solution
is that Western developed countries can concentrate on the human rights issue to prevent
those pure violent activities from happening in Sri Lanka. Things in developing countries
are totally different as in developed countries. Thus, the policies to deal with the
international law and human rights are different.
Critical Analysis
¡E First, the conflicts between international law and domestic law are the primary
issue of this class. In the beginning, the ¡§international law¡¨ was supposed to be
the ¡§law among states.¡¨ The sublime status of domestic jurisdiction was
universally recognized. Since the rising of international organizations, the
domestic law was undermined by the intervention of international law. There are
numbers of reasons why the international law and world court has been used so
sparing. The most obvious reason is its limited jurisdiction. Because important
interests are in conflicts between the states, and because the stakes are usually
judged to be very high, governments are most unwilling to risk an unfavorable
decision by the Court based on international law. Moreover, uncertainty in the
international law increases the probability that a judge, consciously or
unconsciously, may be influenced by political considerations. The distrust
between states and international societies contributes to the conflicts. Small state
doesn¡¦t trust the jurisdiction by world court, and strong states manipulates the
jurisdiction of world court, those all made international law weaker. To
reestablish the structure of international tribunal system, the expansion of
participation in international law bodies is necessary. Through the multilateral
negotiation, the international law could be more practical in real worlds.
¡E Second, the human rights issue is important in class5. The main difficulty to
prevent human rights from violation is compounded by disagreement among
states on the nature of the rights to be protected and on the priorities among them.
Western countries and Third World state emphasis on different aspect of human
rights. This difference contributes to that Third World deemed western countries¡¦
advice as intervention. Basically, states are the primary guarantors of individual
rights. Unlike states, the international organization has no courts to hear the
complaints of individuals. Even the ICJ permits only states to be parties to
&nbp; contentious cases brought before it. If a violation is found, the international
organization has no means of providing redress other than negotiation, censure,
or the levying of sanctions. The UN role under these circumstances is concerned
mainly with formulating standards and encouraging conformity to them. This is
not enforcement, but it does encourage greater observance. The UN has only an
indirect role in promoting human rights, and so does the international law.
¡E Third, let¡¦s combine the international law issues and human rights issue. As I
argued before, under international law(the law among states), domestic law is
sublime, and states have been largely free to treat their own citizens as they will.
This is the source of the most persistent and flagrant human rights violation. As
the rising of more liberalism thoughts, the new law of human rights, arising from
both treaty and custom, offers people more protection against their own
governments, but the tradition of national autonomy remains strong. What could
international organizations do to improve the human rights? Pressures by one
state on another for better observance of human rights generally stop short of
coercive action. The pressure from international society that motivated by the UN
can also improve the long-term welfare to people.
Conclusion
The conception of international law was based on western thoughts, and the judges of
world court are educated by western education system(although some of them came from
third worlds). To persuade states other than western mainstream countries to believe the
¡§universal and eternal¡¨ criteria of international law and human rights, more
understanding among states is necessary. To find out the real ¡§nature¡¨ of international
law and human rights, we must pay more attention to social and cultural aspects.