The worst is not always certain, but we must act!

In the “President’s word” of September 2018, I expressed concerns – without originality (but it is not a reason not to sound the alarm) – about the new crisis in international law and I was wondering about the role that we, lawyers, and more particularly the SFDI and its members, can play in trying to prevent the crisis from turning into a collapse of international law (in which I do not believe) or at least a return to a pure general legal framework for parallel unilateralism.[1]

That post has had some echoes (this is the first time I have ever received a reaction to a letter from the president!) and although it’s not statistically significant, it shows that our small community has become aware of the seriousness of the situation and the importance of the issues at stake (and, fortunately, other signs of this concern can be found in our writings). But concern does not mean action, and it must be admitted that there have been few concrete proposals

This does not mean that we in the SFDI have done nothing – nor that we will do nothing.

There was, as announced in my post, the Second Meeting of the Societies for International Law which was, I believe, a real success and it is of course a source of real satisfaction – not only for the visibility that this kind of event offers to our Society, but also because it testifies to the eagerness of our colleagues to meet and “exchange”. It was all about this: no registration; no publication; just talking and discussing. 89 societies were represented, about 300 participants (“by invitation” only, otherwise we would have been overwhelmed by requests), 98 of which made a short presentation (8 minutes strictly calibrated per speaker!) mixing practitioners (most of them very eminent) and academics, all, without any exception, came at their own expense; coffee breaks, three lunches or buffet dinners that reinforced the conviviality and… subsidies, often generous, especially from international law firms.[2]

At the end of the Meeting, participants adopted by acclamation a Declaration which, while recognizing that “international law must adapt to the constant acceleration and evolution of societies, of technologies and of the economy”, recallsthat, “[a]fter the Second World War, international law has been established mainly on three pillars: the collective security system, multilateralism and the protection of human rights” and underlines that, “[p]aradoxically, these pillars are being challenged at a time when States and human societies have never been so interdependent. Yet, the temptation of unilateralism and isolationism is being felt in a growing number of areas of international cooperation. Scholarly societies share the convictions that the fundamental principles of international law remain fully relevant, and that common or coordinated responses to regional or global challenges can be brought on the basis of these principles.”

On the basis of these conclusions, the Declaration calls on societies for international law to strengthen their cooperation, in particular:

– by coordinating their work and identifying topics of common interest,

– by jointly mobilizing resources for major international causes,

– through exchanges facilitating the expression of the pluralism of legal cultures, approaches to international law and working methods and to better mutual understanding;

– by encouraging dialogue with the civil society, the media, policymakers, domestic and international judges, and representatives of other academic disciplines; and

– by reciprocally promoting their initiatives, work and publications as well as exchanges between internationalists, especially the younger generations.[3]

Excellent news: the Peruvian Society will organize the third Meeting in Lima in 2021. Furthermore, I very much hope that the World Network of Societies for International Law, led by Clementine Bories, Professor at the University of Toulouse-Capitole, will contribute to developing synergies between societies[4].

From a slightly different perspective, but in the same spirit, the SFDI will organize in Paris, in principle next autumn, a Conference on the Teaching of International Law (“Assises de l’enseignement du droit international”). In our view, this will be an opportunity to take stock of the place and content of international law teaching in France but also in a comparative perspective and, I hope, to promote concrete initiatives to improve the situation, which is not very bright. We will keep you informed as soon as things become clearer but do not hesitate to make suggestions by writing to our Secretary General, Anne-Thida Norodom (anne.thida.norodom@gmail.com), and our Treasurer, Caroline Kleiner (caroline.kleiner@parisdescartes.fr), who are organizing this event.

And, of course, the Society continues its usual activities – as a reminder in particular:

– on 23 March, first of the two sessions organized by the Young Researchers (“Jeunes Chercheurs”) to prepare the Colloquium of Toulouse on “Outer Space: the Stakes for Investment (Public, Private, Regional, International)”;[5]

– on 31 March, one day-session on the topic of “A Legal Approach to Economic Warfare” at Université Paris Est Créteil;[6]

– on 3 April in the morning, first Doctoral Seminar of the SFDI;[7] it will precede the half-day session for the Young Researchers taking place in the afternoon, also at Université Paris Nanterre (CEDIN) on the topic “Outer Space and War”;[8]

– on 28 and 29 May, annual Colloquium, in Toulouse, on the topic “Outer Space and International Law”;[9]

– on 26 June, one day conference (in cooperation with the Société française de finances publiques), on “The Finances of International Organizations: Permanence and Perspectives”;[10] and,

– in Munich, on 25 and 26 September, Franco-German Conference (in cooperation with the Deutsche Gesellschaft für Internationales Recht) on “Democracy – A Fundamental Element of the International Order?”;[11]

without forgetting the Rousseau Moot Court competition on public international law, supported by the SFDI, whose hearings will take place in Hammamet (Tunisia) from 9 to 15 April,[12] the scholarships for the Academy of International Law and the thesis prizes.

It’s a promising program for this year 2020. But its success depends on the commitment of all – especially on your financial contributions (you will soon receive a reminder from the treasurers of the Society – thank you for paying them – if possible quickly: we have no subsidies), but not only: it is also your commitment that matters: we are a very (too) small handful of “really” active members (with a special mention of the Young Researchers’ Bureau); suggestions, assistance, initiatives are always welcome; don’t hesitate!

In the same spirit, I am planning (and this will be the last action of my presidency of the Society, which I will leave in October) an intense campaign to recruit new members (and to reactivate membership of former members who have left us and/or do not pay their membership fees). Here too you can help us by encouraging international lawyers you know who are not yet (or no longer) members to join (or re-join) the Society.

And I come back to what I started with, we must act and try to exert influence on the current very worrying drifts, and it is not written that the fight is lost in advance. Admittedly, the perspectives are bleak: the return in force of a badly conceived sovereignty obsession which is destroying multilateralism (brutal with Trump, more subtle – and perhaps all the more worrying – with Xi), the devastation of our environment, the increasingly likely threat of high-intensity armed conflicts, the gradually marked indifference to the protection of human rights, are far from being mere fantasies.

That said, the situation is serious, but not necessarily desperate.

First of all, as I said in my lecture mentioned at the beginning of this (long!) “word”, the more we talk about sovereignty, the more there is need for international law. This seems paradoxical, but it is simply logical: contrary to a preconceived and stupid idea, sovereignty, in the international order at least, is by no means an absolute concept from which it would follow that the holders – States – have the right to act as they wish without any limitation. First, while sovereignty is the corollary of States’ rights, it also imposes obligations to them. Second, it is precisely because they are sovereign but equal that States need international law, which establishes the framework for their coexistence: they have only rights compatible with the, equal, rights, of all other States.

But there is something else. In these difficult times for international law, I would not go so far as to say that the glass is half full; at least it is not completely empty even if you take a still picture of the current situation. But a movie going back in time to the pre-1945 situation in order to compare it with the present situation allows for more optimism. Progress made are, until now, largely protected:

– The prohibition of the use of armed force has not prevented the persistence of many open conflicts; since 1945, however, they have been limited, often within a single State (atrocious as they may be – whether in Syria, Yemen or Sudan, not to speak of the Yugoslav or Rwandese genocides); a document published in 2017 by the Peace Research Institute in Oslo, shows that the number of international conflicts has fallen by more than half since the end of the Second World War, it is true that quite often involve significant external interventions;

– The second half of the XXth century was probably the time of the worst humanitarian disasters (the Shoah, Gulag, the “Great Leap Forward” and the Cultural Revolution in China), but it was also the time when the World has equipped itself with legal instruments to deal with these disasters – at least when political will and balance of power permit: the Security Council can consider a humanitarian disaster as a threat to peace and those responsible for the worst international crimes are no longer guaranteed impunity even if they all too often escape the punishment;

– No State can claim today that the protection (or contempt) of human rights falls within its ‘reserved domain’: since 1945 – and this remains true today – Goebbels’ speech to the League of Nations following Franz Bernheim’s petition is not conceivable and no State can publicly claim to practice torture as a system of government – even if too many of them do not deprive themselves of it in the secrecy of their gaols and police stations;

– There is no international court with compulsory jurisdiction to settle all differences between States; but while the World Court has long remained the only tribunal of its kind, the multiplication of international courts and arbitral mechanisms now offers a wide and diversified range of possibilities for the legal settlement of international disputes. Long live forum shopping! And the market for dispute settlement (both inter-state and transnational) has never been better.

– Perhaps we can also put on the right side of the balance the emergence of international criminal law and the deployment of universal jurisdiction which, cahin-caha, help to consolidate the feeling of the existence of an international community, even if much remains to be done, particularly with regard to crimes against terrorism and if the future of international criminal law seems very uncertain;

– Despite the irresponsible attitude of a few States governed by narrow-minded populists, starting with the most powerful among them, “the international community as a whole” has finally taken the measure of the challenge, vital for our planet, of defending our environment; concrete measures are still awaited, but the principles have now been established and it is to be hoped that they will eventually be implemented under the pressure of public opinion; and

– Even if I am not very optimistic about the possibility of concluding new multilateral treaties in important areas, it is interesting to note that, despite the obstacles, negotiations on a draft comprehensive convention on terrorism continue to be discussed, and it is not impossible that a convention on crimes against humanity may emerge on the basis of the ILC draft articles adopted last year on this subject.

Then, the glass containing international law is not completely empty. It now belongs to us to avoid that it turn into a barrel for the Danaids. But, to that end, words are not enough; deeds are needed.

Law is not an end in itself; it is a means to ends external to it: power and values, power to enforce certain values. As rightly explained by Émile Giraud, a French professor of public law nowadays a bit forgotten, who was, during the war, the Legal Advisor of the League of Nations, “law represents a successful policy” (“une politique qui a réussi”).[13] This is true in both international and domestic law: when power relations turn to the disadvantage of certain values, the legal norms that reflect them weaken or disappear. It is undeniable that in the contemporary world we are witnessing the rise of obscurantist forces carrying beliefs that are incompatible with traditional humanist values. But, once again, there is no magic wand; it is the balance of power that we must try to change, not by unrealistically proclaiming unworkable legal rules, but by taking political action to establish the conditions for real change. To this end, I wonder whether the solution to the problem is not to be found, at least in large part, internally.

There can be no gap between the values promoted by international standards and those prevailing within States. If doctrines that challenge the values reflected by international law continue to spread within States, as has been the case for the last years, I find it difficult to see how the erratic and regrettable trends in contemporary international law will be corrected. We are in danger of continuing to slide down the wrong path and lawyers, unless they enter into resistance (but that is not their role in principle), will have to acknowledge the existence of new (and bad) rules generated by the new power relations. But lawyers, including international lawyers, are also citizens and, as such, perhaps more enlightened than others. We can, individually and together – including through the work of the SFDI, which I would like to be more “activist” – help to prevent this regrettable development.

I believe deeply in the virtues of political action on the condition that, as very wisely warned recently by Donald Tusk, the former President of the European Council, we keep in mind that “we are not right solely because we are right. Our position must answer people’s needs”[14]; and it is through improvements in national policies that the international law in which we believe will owe its salvation or its descent into hell. Our Society can and must help to prevent this deterioration even though we know that its weight can only be modest – but it is up to us to use it and try to increase it.

                                                                       Alain PELLET

                                                                       President of the SFDI.

 

[1] I refer to a lecture I gave last May in Berlin at the invitation of the Berlin Potsdam Research Group International Law – Rise or Decline? (some elements below are borrowed from it) during which I developed my position (« Values and Power Relations – The “Disillusionment” of International Law? » available on http://alainpellet.eu/wp-content/uploads/2019/06/Conf-Berlin-2019.pdf or on https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3400689).

[2] For details, see https://rencontremondiale-worldmeeting.org/.

[3] For the full text of the Declaration and the opening and closing speeches, see https://rencontremondiale-worldmeeting.org/discours/.

[4] See https://rencontremondiale-worldmeeting.org/le-reseau/ or http://www.sfdi.org/reseau-mondial/.

[5] http://www.sfdi.org/wp-content/uploads/2019/12/Jeunes-chercheurs-SFDI-Demi-journ%C3%A9e-2020-Toulouse.pdf

[6] Details will be communicated shortly on the Society’s website (http://www.sfdi.org/).

[7] http://www.sfdi.org/wp-content/uploads/2019/12/seminaire-doctoral_appel-a%CC%80-candidatures.pdf.

[8] http://www.sfdi.org/jeunes-chercheurs/demi-journees/.

[9] http://www.sfdi.org/actualites/lespace-extra-atmospherique-et-le-droit-international/.

[10] Details will be communicated shortly on the Society’s website (http://www.sfdi.org/).

[11] Details will be communicated shortly on the Society’s website (http://www.sfdi.org/).

[12] http://www.rfdi.net/edition-en-cours/.

[13] E. Giraud, « Le droit positif – Ses rapports avec la philosophie et la politique », in Hommage d’une génération de juristes au Président Basdevant, Pedone, Paris, 1960, pp. 234. See also : Guy de Lacharrière, La politique juridique extérieure, Economica, Paris, 1983, p. 199.

[14]  Adam Michnik, Jaroslaw Kurski and Bartosz T. Wielinski, “Donald Tusk : « Si les démocraties libérales ne peuvent garantir le sentiment de sécurité, elles perdront »”, Le Monde, 10 May 2019, available at https://www.lemonde.fr/international/article/2019/05/10/donald-tusk-si-les-democraties-liberales-ne-peuvent-garantir-le-sentiment-de-securite-elles-perdront_5460465_3210.html. [free translation from the French : “nous n’avons pas raison seulement parce que nous avons raison. Notre raison doit répondre aux besoins des gens”].