Illustration by Shenuka Corea
International law, like other bodies of law, comes with many inherent flaws. For international law, critics most commonly point to its lack of enforcement. To a degree, this makes sense. How can a system of legal rules be effective if there are no means of ensuring that those whom it governs abide by these rules? Perhaps in the most practical of ways, international law struggles to attain the same legitimacy as national laws that are enforced by local governments.
However, there is most definitely merit to the existence of international law, both in its establishment of consensus across a vast array of issues and in the responsibility that this recognition confers on each state that is in agreement.
International law offers a platform for states to reach agreement on cross-border issues, and for standardizing systems of operation that affect most, if not all, states. At the most basic level, we can take the example of rights to travel and multilateral aviation agreements. Achieving consensus on the various factors that fall in this category has made air travel and regulation much more efficient in the most practical of senses. The passport for the individual is an official identification document, but for the international order it is a standardized document that facilitates communication between immigration officers at both the departure and the arrival sites.
State agreement transcends the convenient and the pragmatic, and includes more profound and complex issues. The most obvious example is the Rome Statute, to which 123 states are party. It was adopted in 1998 to establish a permanent International Criminal Court that has jurisdiction over genocide, crimes against humanity, war crimes and crimes of aggression. The efficacy of the ICC is hotly debated due to complications that arise as a result of its system of prosecution. One of these complications is state politics and their interference in investigations, as was illustrated by the collapse of the case against Kenyan president Uhuru Kenyatta. Putting the ability to prosecute aside for a moment, there is something more important at play here when it comes to international recognition of the impermissible nature of the four crimes that fall under the jurisdiction of the ICC.
Arguably, Jus Cogens is a large part of the reason that the four crimes listed above are the ones that are prosecuted by the ICC. Jus Cogens is defined as follows:
A norm is “accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
What this goes to show is that even without the ICC and the Rome Statute, these crimes are, at their core, abominable acts against humanity and in violation of the dignity of the human person. The outcomes and lessons of WWII, Yugoslavia, Rwanda and Argentina have all been instrumental in creating customary international law that is underscored less by consensus and more by notions of universal morality and justice. By actualizing custom through the codification of these crimes, international law adds responsibility to the moral weight of avoiding, preventing and mitigating the consequences of such crimes. In recognizing these laws by signing treaties such as the Rome Statute states arguably submit themselves to bearing this moral responsibility.
This moral weight is by no means easy to bear. Recognition of atrocities based on a calculation of ethics confers great responsibility upon the recognizing state to act in some capacity. We can take the designation of genocide as an example. While the Ontario Legislature in Canada formally recognizes what is commonly termed as the 1984 Sikh Genocide, the Canadian House of Commons is reluctant to do the same. This apprehension is likely to come from the same place that U.S. American apprehension came from before formally recognizing the atrocities committed against religious minorities by the Islamic State in Iraq and Syria. The designation of genocide creates a moral imperative to take action, even if it’s not in a state’s national interest to do so, given the Jus Cogens that surrounds the crime. Avoiding the designation, on the other hand, allows states to absolve themselves of the duty to respond.
So while international law may lack concrete enforcement mechanisms, its effectiveness comes from both the order it creates via consensus among states and from the moral underpinnings of its custom. This system is by no means perfect and often fails to work in the traditional sense of the law, but it has potential that should be developed as opposed to sidelined in the name of futility.
Simrat Roopra is a Middle Eastern and African Politics Columnist. Email her at [email protected]