by Peter Jenkins
Enthusiasm in some quarters for punishing Russia for its moves to recover the Crimea has been a feature of recent public debate.
Similar references to “punishing Assad” were rife last August after Western governments published indications that the Syrian government had used chemical weapons in the suburbs of Damascus.
This fondness for viewing international situations through a crime and punishment prism is striking because it is sharply at odds with international law — or rather, to be more precise, with laws governing relations between states.
The United Nations Charter, which lies at the heart of the international system, is devoid of references to crime and punishment. Instead it lays down procedures for the pacific settlement of disputes and for action with respect to threats to the peace, breaches of the peace, and acts of aggression. The aim of such action emerges clearly from articles 39, 40 and 42 of the Charter. It is to “maintain or restore international peace and security”, and to “prevent an aggravation of the situation”.
The Statute of the International Court of Justice (ICJ) is equally devoid of such references. The ICJ’s job is to deliver interpretive judgements on “all cases which the parties refer to it”, any question of international law, and the nature or extent of the reparation to be made for the breach of an international obligation.
The Charter concept of “restoration” is echoed in the Statute of the International Atomic Energy Agency (IAEA) and in the dispute settlement understanding (DSU) of the World Trade Organisation (WTO); the ICJ concept of “reparation” in the DSU.
Article XII.C of the IAEA Statute requires the Board of Governors to “call upon [any member state reported by the Director General to be in non-compliance] to remedy forthwith any non-compliance which [the Board] finds to have occurred.”
Article 19 of the DSU states that when a trade measure is found to be inconsistent with a WTO agreement it will be recommended to the member concerned that the member “bring the measure into conformity with that agreement”. Article 22 provides for the “compensation” of a WTO member or members who have been affected by a trade measure in the event of a conformity recommendation not being implemented within a reasonable period of time, but stresses that full implementation is to be preferred.
Both the IAEA Statute and the DSU contain provisions that could be construed as punitive. The Statute envisages loss of access to the IAEA technical assistance program, and even suspension from the exercise of member privileges and rights, “in the event of failure to take full corrective action within a reasonable time”. The DSU provides that victims of an offending trade measure may apply to the WTO’s Dispute Settlement Body for authorisation to suspend trade concessions previously available to the offending party.
But the context and drafting of these provisions suggest that their framers’ intention was not punitive but corrective: to create a source of pressure on the offending party to return to conformity.
The lesson to be learnt from these examples is that it is a mistake to think of the inter-state part of the international legal order as having the characteristics of a domestic criminal justice system.
If anything, it is to Anglo-Saxon civil law that inter-state law approximates, especially to the law of tort and to contract law. It is there that one finds such concepts as the settlement of disputes through judicial process, corrective action, reparations and compensation.
This is not to deny the existence of a body of international law that is concerned with criminal justice. However, international criminal courts and tribunals mete out punishment to individuals, guilty of war crimes, for instance, or crimes against humanity — not to states.
These distinctions are not trivial. Public and parliamentary misunderstandings about the fundamental nature of inter-state law can lead to pressure on governments to act in ways that are more likely to provoke conflict and to “aggravate the situation” than to restore peace or resolve disputes.
Governments should react robustly to such misunderstandings. Ministers can exclude all mention of punishment from their own statements in times of international crisis, and they can spell out that their over-riding aim is to secure compliance with international obligations, the correction of non-compliance, and the maintenance or restoration of peace.
If that leads them to refrain from imposing sanctions when it is obvious that sanctions will not serve any of those ends, and that their only purpose is punitive — or even vindictive — so much the better!
Marvelous article. Thank you Ambassador Jenkins. I hope the President and his Secretary of State will heed this advice. (Oh, it would also help if Dean James Stavridis of the Fletcher School of Law and Diplomacy also gets the message and stops thinking he’s still an Admiral trying to manufacture and fight NATO’s next war.)
Thanks again to Mr Jenkins for the primer. It seems ever since the Bush II got to rewrite the interpretation of the laws, like it’s O.K. to water board/torture, for one, then the revisionists have been busy. To say the inmates of the loony bin are running the show, would be spot on, I believe. I would further venture to say, that I’m not the only one on this, am I?
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