But what do international law and the Arab protests have to do with books and movies about an orphan raised by his uncle setting off on a quest to destroy an evil lord, guided by a wise old wizard (yes, the plots are all the same)? Well, the point is that many observers feel like “something should be done” to help save the heroes from violence at the last minute – and there is often a hazy feeling that international law can fill this role.

This very sentiment was expressed recently in a speech by Justice Rosalie Abella of the Supreme Court of Canada. Justice Abella asks whether the phrase “rule of law” has become a mere euphemism in an age where it is used by dictators to defend the repression of their own citizens. She goes on to track the evolution of the “rule of justice” – consisting of civil liberties and human rights – in the West, which was helped along by revolutions against autocrats and the horrors of the Holocaust in World War II. Justice Abella wonders where the momentum for an enforceable system of human rights and civil liberties in the international sphere has gone today – and why we hide inaction behind the excuses of “cultural relativism” or “domestic sovereignty”.

To Justice Abella’s point about the rule of law, it is true that this phrase becomes a euphemism when it is used by dictators. The principle of the rule of law is that there must be a law to which everyone – including a country’s rulers – is subject. For most countries, a constitution fills the role of the supreme law, which places firm limits on the actions (and term) of the government. Internationally, the “rule of law” can be illusory because there is no enforceable supreme law placing limits on the actions of states. Countries today can only be bound through voluntary treaties; like contractual law but without any public policy protections. Efforts to intervene in crises through principles of international law such as the “Responsibility to Protect” (R2P) have not been highly effective because they can only be acted upon when there is consensus among UN (or at least Security Council) members.

In the speech, Justice Abella compares the UN with the World Trade Organisation, and wonders whether countries ruled by tyrants should even be admitted to the UN. However, the UN, unlike the WTO, does not have a single overriding goal other than to keep countries talking. In the words of Winston Churchill, “it is better to jaw-jaw than to war-war.”[1] The WTO has the goal of eliminating barriers to trade, and so can set admission criteria accordingly. In contrast, the UN is open to any country willing to engage in the international conversation.

What of the criticism of phrases such as “cultural relativism” and “domestic sovereignty”, which are so often responsible for nurturing inaction by the international community? In truth, these concepts have their roots in history – and in the West’s colonial wrongdoing. During the colonial period, the West really did attempt to impose its values (and culture and religion) on the rest of the world by force. The legacy of these actions remains present today. Many in the developing world are extremely hostile to any attempt by the West to force its own governance systems on them. In addition, many in the West are extremely hesitant to repeat the mistakes of colonialism.

The Cold War prolonged many pernicious elements of colonialism, even during the era of formal decolonisation. The United States and the Soviet Union both supported dictators around the world – some of whom, such as Egypt’s former President Hosni Mubarak, remained in power in the modern age. Compounding this phenomenon is the tendency of corrupt governments and dictators in the developing world (and particularly Africa) to stand together in solidarity against outside (Western) interference. The location of strategic resources – especially oil – further hinders efforts to impartially enforce an international rule of law.

When all of these factors are taken together, we are left with such a labyrinthine web of overlapping influences, that it’s actually amazing that any achievements in an international rule of law (such as peacekeeping forces, sanctions against violators of the Nuclear Non-Proliferation Treaty, and the International Criminal Court) have occurred. The legacy of colonialism has created hostility among the developing world and guilt among the West, prolonging a strong attachment to the notion of national sovereignty. The recent debacle of the Iraq War has further embittered opinion about how the West should and shouldn’t intervene against dictators.

In short, inaction in the realm of modern international law is often the result of so many bad actions taken in the past. International law at present does more to support sovereignty than intervention because it was designed to do so. I say this not in order to defend the existing system of international law, but to explain it.

In her speech, Justice Abella raises important questions about the international rule of law, and why more isn’t being done to help those struggling for democracy in the Middle East. For better or worse, there are answers to these questions. Though we may find such answers unsatisfying, only by understanding the origins of the present system of international law can we hope to improve it.

Because honestly, why didn’t the eagles just drop the ring in mount doom in the first place?

INTERNATIONAL LAW: JUST IN TIME?

The same could be said for tipping in restaurants; I never agreed to pay an additional, discretionary surcharge on top of the price of my meal, so why should I be bound to do so? In this sense, I don’t think it’s unreasonable to say that every restaurant is like a Stalinist regime (“in Soviet Russia, restaurant eats you!”). I could continue with more examples – and I will. Why do I have to greet people by smiling and shaking hands (or even “faire la bise”), instead of my preferred greeting: staring intensely at one another in silence for several minutes? It’s as if my personal interactions are regulated by some invisible totalitarian system.

It’s not a totalitarian system, you may say, it’s just custom. But who voted for custom in the first place, and why do I need to abide by it even though I never consented to it? This question, as it pertains to customary international law, is at the root of an article by Curtis A. Bradley and Mitu Gulati which appeared recently in the Yale Law Journal. Bradley and Gulati review the history of the “mandatory view” of customary international law, which posits that states do not have the right to withdraw from customary law – even though they never consented to it as they would a treaty. The mandatory view is in contrast to the “default view”, according to which customary international law would provide the default rules which states could then “opt out” of at will.

Bradley and Gulati argue that, until the beginning of the twentieth century, the default view was predominant, and that at the beginning of that century the mandatory view was deliberately promoted by colonial powers looking to bind all the nations of the world to their narrow legal conventions. According to this view, the mandatory approach to customary law is not necessarily appropriate or desirable, and perhaps states should be free to opt-out of customary law – wearing their proverbial muddy shoes in the house, as it were.

A response by David Luban in the same publication disputes Bradley and Gulati’s findings. Luban argues that the pre-twentieth century legal scholars cited by Bradley and Gulati (notably Emer de Vattel) did not in fact advocate for states’ ability to opt out of customary law. According to Luban, Vattel instead distinguished between positive and natural customary law; the former based on an implied consent and the latter based on the fundamental principles underlying civilised interstate relations. Vattel did not contemplate states opting out of the customs based on natural law (or “necessary law” as he called it) – which includes much of what constitutes customary international law today.

Luban continues on to dispute Bradley and Gulati’s contention that the mandatory view was promoted as a tool of colonialism, and then focuses in on a passing remark by the two that “[m]any of the existing rules governing war are likely outdated, in that they were designed for different types of armed conflict than the types of conflicts we see today.” This brings us to the crux of the debate, since for these American legal scholars the question of the customary international law of war is primarily related to the ongoing “war on terror” issue of whether the United States’ “enemy combatants” must be treated in compliance with the Geneva Conventions (which, being treaties, perhaps shouldn’t qualify as customary law anyway). Although Bradley and Gulati didn’t elaborate on their remark, Luban asserts that that the “stickiness” of customary international law (resulting from the dominance of the mandatory view) is in fact desirable when it comes to the laws of war. In Luban’s view, “stickiness may be a virtue, because the alternative to supposedly outmoded customary law is likely to be no law rather than better law.”

It’s quite true that customary law which could be opted out of would likely result in a state of lawlessness (optional laws tend to do that). But this also overlooks a fundamental element of customary law: that there was a reason it evolved in the first place. We take our shoes off upon entering someone’s home so that none of us have to deal with dirty floors whenever we have guests over. We tip at restaurants to support a system which encourages better service. We greet one another with smiles and handshakes because this is apparently “less disturbing” than a silent, vacant stare into one another’s eyes. Similarly, the customary laws of war – particularly the way captives are to be treated – were developed because over time, nations learned that it was better for all parties if soldiers did not have to face torture and death upon capture in war.

If states can “opt out” of this kind of customary law, they may have a greater range of freedom and sovereignty. But, as with me and my now be-muddied floor, they may also re-learn why some customs arose in the first place.

I'M SURE THERE'S SOME SYMBOLISM HERE

As the old adage goes, don’t believe everything the director of the British Museum tells you. Contrary to his claim otherwise, the repatriation of historical artefacts is still a live issue today. Many major objects are being sought from European and American museums by their “parent” countries, including Egypt’s Rosetta stone (currently in Britain), bust of Nefertiti (Germany), and statue of Ramses II (Italy); Greece’s Parthenon marbles (Britain again); Peru’s Machu Picchu relics (United States); and even Korea’s Jikji – pages from what is believed to be the oldest book printed with movable metal type in existence (France). Where can these victims of archaeolo-theft turn for support?

Why, UNESCO you say? Indeed, that king among ineffectual global bodies has ventured into (or at least near) the fray once or twice. However, since the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”) only applies to items which were illegally exported after its ratification (1972), it is distinctly unhelpful for items seized centuries ago.

Nevertheless, these kinds of international agreements are useful as indicators of a global consensus on the property status of historical and cultural artefacts. For example, UNESCO’s Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Convention”) describes these types of items as the “cultural heritage of all mankind” (preamble). If this remained the consensus view today, the argument that particular items must be returned to particular countries would be considerably weakened – since all mankind would have equal claim to them. The 1970 Convention, however, makes it clear that cultural property belongs to the nation in which it originated (Article 4). That this later Convention was accepted and ratified by Western states indicates an increasing degree of acceptance for the notion of nation-specific cultural property (except perhaps in the British museum).

If most countries agree that historical objects belong to the countries in which they originated, why hasn’t a treaty to this effect – and establishing a regime for the return of said objects – been agreed upon? Quite simply, because the countries holding these treasures will give them up when you pry them from their cold, dead hands (much like they pried them from the cold, dead hands of other nations’ ancestors). The best attempt at a comprehensive treaty occurred fifteen years ago, and was created by UNIDROIT (“the Esperanto of the legal world”).

UNIDROIT’s Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was drafted in 1995 as an elaborate exercise in drafting. This Convention, by its very nature, views cultural and historical artefacts as the property of their country of origin. It mandates that possessors of stolen cultural objects return them (Article 3(1)), and that the courts of states in possession of illegally exported objects – upon the request of another state – order them to be returned (Article 5(3)). In the latter case, the requesting state must have some particular interest in the object in question, but the criteria for satisfying this requirement are broad, and include the object being “of significant cultural importance”.

The UNIDROIT Convention, in contrast to UNESCO’s 1954 and 1970 Conventions, was comprehensive, and tackled the issue of the repatriation of historical artefacts in a simple and straightforward manner. Also in contrast to the UNESCO Conventions, it was never implemented. It’s easy to explain why: the UNIDROIT document actually required former colonial powers to return their historical loot, which they don’t want to do. Alas, getting governments to consent to treaties which would require them to do things they won’t consent to do is the Achilles heel of many international agreements.

Nevertheless, the UNIDROIT Convention is a useful guide to what a rational international agreement on cultural property repatriation might look like. It’s a shame to relegate it to the dustbin of history; at the very least, it belongs in a museum.

A CULTURAL EXCHANGE PROGRAMME

“What does this have to do with law?” you may ask (other than its relevance to my ongoing unjust dismissal hearing). Simple: by passing the environmental buck on to financial regulatory agencies such as the Ontario Securities Commission (OSC), we would be treating them just like poor old Tibor.

In the land of the incompetent, the semi-competent man is king. Similarly, in the ham-fisted world of inefficient and ineffective governmental organisations, a body which generally satisfies its mandate, such as the OSC, is a paragon. Of course, the OSC (or the rest of Canada’s financial market regulators) isn’t beyond criticism. Many complain that Canada is more lax towards fraud and white-collar crime than other countries. Nevertheless, the OSC has fared much better in meeting its dual mandate – protecting investors while promoting fair and efficient markets – than equivalent organizations in other jurisdictions, such as the Securities and Exchange Commission (SEC) in the United States (particularly during the financial crisis).

It is understandable that some would want to use a relatively effective (and semi-autonomous) governmental body such as the OSC to advance important causes which are unrelated to its mandate, just because they have been neglected by more relevant organisations. Examples of such causes could include labour standards, unpopular executive decisions (see this year’s OSC ruling involving Magna International), and now environmental standards. “Tibor,” I mean “OSC,” you might say, “Environment Canada has little power to force businesses to improve their sustainability practices. Why not use corporate disclosure rules to help things along?”

Professor Dhir’s proposal, in his recent special submission to Legal Frontiers, is of course phrased differently, but the effect is largely the same. Professor Dhir argues that the OSC already has the power to require disclosure on environmental matters, and that such disclosure is of material significance to investors. He proposes that Canadian (or Ontario) law be modified to require that companies explain an absence of environmental and social policies, and assess the success of such policies.

The crucial assumption for having financial regulators enforce environmental disclosure is that it is materially relevant to investors because it corresponds with financial performance. Yet various studies have examined this link and found it to be inconclusive. For this reason, National Instrument 51-102 (which applies across Canada) requires companies only to report on “environmental policies that are fundamental to […] operations”. This is logical on its face: in some industries (such as mining or fishing) environmental policies may closely relate to financial performance, while in others (such as manufacturing musical instruments) the link may be nonexistent. Disclosure of these policies is thus only relevant to investors in the former case.

The distinction is important because as international political action on the environment – and particularly climate change – stalls, individual countries will turn to non-conventional means and organisations to achieve progress. For example, the United States has been considering using tariffs within the World Trade Organisation (WTO) framework to prompt action on greenhouse gas emissions. But the risk is that pulling in unrelated organisations such as the OSC or the WTO may merely confuse environmental law, reducing the impetus for a proper solution without actually achieving much.

There are many strong arguments for forcing corporations to implement environmental and social policies. But these arguments may not involve information which is materially important to investors. For this reason, it unwise to pursue action on corporate environmental responsibility within the context of a financial regulatory body tasked with protecting investors – even if progress on other fronts has been limited. Doing so is like forcing a square peg into a round hole, just because someone put gum in the square hole. Nevertheless, the temptation to do so in this case is strong, particularly since political action on the environment is so full of gum. But as Tibor could tell you, foisting the tough jobs onto someone else can only get you so far.

I only wish he hadn’t told a certain Labour Relations Board the same thing during a certain unjust dismissal hearing.

QUICK, FIND TIBOR!

The International Court of Justice (ICJ) that is. In July, the ICJ gave an advisory opinion to the UN General Assembly, reaching the sweeping conclusion that “international law contains no applicable prohibition of declarations of independence.” The subject of this opinion wasn’t a prominent nation like New Worcestershire, but an obscure place called Kosovo. Kosovo declared independence from Serbia on February 17, 2008, and the validity of this declaration has been hotly disputed ever since.

At Serbia’s prompting, the UN General Assembly, in October 2008, passed a resolution referring to the ICJ the straightforward question: “is the [Kosovan declaration] in accordance with international law?” The ICJ considered the question in two parts; whether the declaration was in violation of general international law, and whether it was in violation of a specific law – namely UN Security Council Resolution 1244. On the first count, the majority looked at the history of declarations of independence in the past 300 years, and determined that no general principle of international law prohibits a declaration of independence. With regard to Resolution 1244 (which concerned the interim governance structure for Kosovo until a permanent agreement on its status could be reached), the majority decided that, because it was merely an interim arrangement, and because it applied to parties not including the authors of the declaration, the declaration could not be in violation of the resolution. For these reasons, the majority of the ICJ found that the declaration was not in violation of either general or lex specialis international law.

To Canadian readers, this decision probably seems so 1998. In that year, the Supreme Court of Canada (SCC) issued its opinion in Reference re. Secession of Quebec, on the question of whether Quebec could unilaterally secede from Canada under either Canadian or international law. The SCC approach to this question was similar in some ways to the ICJ, and different in others. Like the ICJ, the SCC took a very narrow view of the legal question – though here it was phrased in the positive (“does the applicable law allow secession”) rather than the negative (“does the applicable law prohibit declarations of independence”). In the event, the court decided that neither Canadian nor international law permitted a territory to declare independence unilaterally – particularly in a democratic setting. Unlike the ICJ however, the SCC went a little further than the narrow legal question, into the realm of the political, holding that the federal government would be bound to negotiate in good faith with Quebec in the event of a clear referendum result favouring secession.

Ultimately, one court found unilateral declarations of independence to be not illegal, while another found them to be not legal. What does this mean for would-be Founding Fathers and Mothers, such as myself? The answer has been clear all along. Questions of the independence of states simply aren’t legal issues, but political ones. The parties submitting the questions to courts in the examples above were never interested in the legal answer. They wanted a court’s opinion which could be used as ammunition in the political battle over independence.

Various countries’ reactions to the ICJ decision are notable only for their predictability, and reinforce the above conclusion. Countries with potentially secessionist regions, such as Russia, Spain, China, and India (though excluding Canada) dismissed the ruling, while aspiring statelets, including Nagorno-Karabakh, Abkhazia, and South Ossetia (the latter two paradoxically supported by Russia) enthusiastically embraced it.

How should courts deal with situations when they are asked for an opinion which, regardless of the answer, will be used as fodder for political gain? The ICJ restricted its ruling very narrowly to the legal question asked, while the SCC gave a balanced opinion which allowed both parties to claim victory. Neither approach has prevented the opinions from becoming political ammunition. Should courts thus refuse to rule on such transparently political questions, or should they dutifully fulfil their role, ignoring the political consequences?

There aren’t clear answers to these questions. The only thing that’s clear is that if the Supreme Potentate of New Worcestershire ever finds himself before a Canadian (i.e. foreign) court for not paying so-called “income taxes”, the ICJ opinion will be invaluable in supporting his claim to self-determination. On the other hand, the SCC opinion in re. Secession of Quebec could be useful too – our referendum on independence won by 100%, after all…

NOTHING ILLEGAL HERE

The first lesson for the ICC is clear: more celebrities. The SCSL’s trial of former Liberian President Charles Taylor, which began in 2007, attracted little attention from the international media until recently, when actress Mia Farrow and supermodel Naomi Campbell appeared as witnesses. Since these ladies became involved in the trial, the Western media has become suddenly interested in war crimes committed in Liberia and Sierra Leone (though the movie Blood Diamond also helped make the subject matter sexier).

The ICC, meanwhile, has begun investigations into crimes in five countries – Uganda, the Democratic Republic of Congo, Central African Republic, Sudan, and Kenya – and the media still doesn’t know where those places are, let alone which non-celebrity was responsible for the mass murder of thousands of other non-celebrities. The ICC should start scouring its case to see if Sudan’s President Omar al-Bashir ever met with Britney Spears, or if any of Congolese rebel leader Thomas Lubanga’s child soldiers wound up as part of the cast of Glee. The court needn’t restrict itself to celebrity witnesses though; just look at Charles Taylor’s defence lawyer, the Grandmaster Flash-quoting Courtenay Griffiths. Perhaps general awareness of the ICC could be boosted by the addition to the bench of Judges Judy, Reinhold, and Simon Cowell?

But despite its A-list witnesses, the SCSL could follow the ICC’s lead in one respect: securing a more reliable budget. Although the SCSL has cut the number of charges Charles Taylor faces from 17 to 11, the trial continues to drag on four years after it began. Each year the SCSL is forced to turn to international donor countries to acquire its $18M budget. The ICC, by contrast, has a permanent funding structure (the largest source of funds being the European Union), over 500 permanent staff, and an annual budget over $100M. The SCSL’s tight budget has led some to call for reducing the list of charges against Taylor further, the logic being that even a few successful charges will be enough to secure a life sentence.

Though ad hoc tribunals may not have the funding to compete with the ICC, they have a better track record of actually gaining custody of those they lay charges against. Charles Taylor and Slobodan Milosevic, who died while in the custody of the ICTY, are only the most prominent examples. The ICC, by contrast, has only taken custody of four of the sixteen individuals who have been indicted (two others have died, and three appeared voluntarily).

Why such a poor track record? In part, it is because the ICC has aimed too high, laying charges against even current national leaders such as Sudan’s al-Bashir. The experience of ad hoc tribunals shows that it’s best to go after individuals only after they have fallen from power, and have little to offer to friends still in high places. It’s true that the SCSL indicted Taylor while he was still President of Liberia, but by that time (summer of 2003) he had lost control of much of the country, and would soon resign and be exiled. The ICC, by contrast, has gone after al-Bashir while he is still in full control of Sudan (notwithstanding the autonomous southern region).

The difficulty with attempting to charge those still in power, is that they are still in power, and so have the ability to influence other states. For this reason al-Bashir was recently able to visit neighbouring Chad, where he was welcomed by the government. Chad has ratified the Rome Statute which established the ICC, Article 59 of which requires member states to comply with ICC arrest warrants. However, Chad has justified its refusal to comply by referring to an African Union (AU) resolution urging African states to defy the ICC on the al-Bashir case – even though the AU had removed that clause from the resolution shortly prior to al-Bashir’s visit to Chad.

The tribulations of the trials at the SCSL and ICC demonstrate that international justice remains hugely dependent on politics. These bodies focus mostly on African conflicts which are of little interest to the international media, their budgets are dependent on Western donor countries, and arresting the accused requires cooperation from countries which are often ill-disposed towards the courts while the suspects are still in power. A permanent institution such as the ICC would seem to indicate that progress is being made towards a world in which international crimes are brought to justice. Yet in practice we seem no further along than when ex post facto victor’s justice was meted out in the Nuremburg trials after the Second World War. At the very least, the ICC and ad hoc tribunals should improve by learning from each other.

And if the odd supermodel pops up in the trials, who are we to complain?

INTERNATIONAL JUSTICE: SUDDENLY COMPELLING

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s all well and good to give neighbours’ coasts an old fashioned “slicking”. But as any eighth-grader who gets caught TP-ing someone’s house because my friend Alan can’t keep his mouth shut knows, there must be a time for cleaning up as well. Unfortunately, international law provides few answers about who is responsible for cleaning up international spills.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter explicitly excludes any “wastes derived from the exploration and exploitation of sea-bed mineral resources”. As a result, it will likely not apply to oil spills. The UN Convention on the Law of the Sea is more promising. It specifies at article 194 that “states shall take […] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source”, and specifically, “pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil”. However, for the U.S. oil spill UNCLOS is of limited value because America has not ratified the treaty. Instead President Reagan in 1983 directed government agencies to treat most parts of the treaty as customary law.

Beyond the realm of international treaties, much of the regulation of the offshore oil industry is carried out by special national regulators. These include the U.S.’s Minerals Management Service (MMS), the Norwegian Petroleum Directorate, Britain’s Health and Safety Executive, and Australia’s Department of Minerals and Petroleum Resources. In Canada the Canada-Newfoundland Labrador Offshore Petroleum Board (CNLOPB) regulates the industry, since Newfoundland-Labrador is the only province where offshore drilling currently occurs.

National offshore oil regulators do little to coordinate standards with one another. They lack even uniform sex and drugs corruption standards. A prominent example is the absence of coordinated regulations requiring the presence of an “acoustic switch” on offshore rigs. This is a failsafe device which can be remotely (and reliably) used to close off a gushing well on the sea floor in the event of an accident – such as that on the Deepwater Horizon rig. Acoustic switches are required on rigs in Norway, Brazil, and Canada, and they are present in British operations in the North Sea. Yet in a 2003 report to the MMS, requiring acoustic switches was not recommended because “they tend to be very costly”. As a result, acoustic systems are not present on American rigs.

The lack of coordination between oil regulators stands in stark contrast to the kind of international cooperation seen in other industries. IOSCO, the International Organization of Securities Committees, allows national (and provincial) securities regulators to unify policy approaches, while central banks are currently negotiating their third set of global banking standards through the Switzerland-based Basel Committee.

With the ever-increasing global demand for oil, offshore spills affecting multiple countries will likely be inevitable. Some day China will catch up with the pros in this respect, leaving behind their current small-town spills. But if oil-producing countries and their national regulators don’t do more to agree on standards for preventing and cleaning up international spills, then the international dimension of spills will remain one-sided. In that respect, perhaps all of the offshore oil producers will remain amateurs.

BUSH LEAGUE