Yesterday I attended MFAT’s annual Beeby Colloquium on International Law. Having had the privilege of working closely with Chris back in the ‘80s, it is quite a moving experience to attend these events.  It is also, equally, an annual highlight in terms of intellectual stimulation and insight into issues of international law.

In earlier blog-posts, I have touched on the issue of a multilateral rules-based order and the competing perceptions among prominent national leaders as to what this means and what is might be composed of. At the 2019 Colloquium, a more penetrating and analysis emerged from the informed and thoughtful contributions, not least from one of the Centre’s Board members, Duncan Currie, on the ‘common heritage’ concept and the law of the sea.

A highlight yesterday was some personal comment advanced by MFAT’s Acting Dep-Sec, Victoria Hallum.  Here are a few of her observations:

“New Zealand’s attraction to multilateralism and multilateral rules is strong.  Multilateralism allows us to pursue enduring multilateral solutions to shared problems.   New Zealand has tended to see the best solutions as underpinned by multilateral rules, because when States consent to being bound by these international solutions under international law, it increases the chance that they / we can rely on these solutions, and enhances stability and predictability.

However the multilateral system, as we know it, has been created in a way that is very State-focused and State-centric.  International law is particularly so, founded as it is on the principles of state sovereignty and state consent.  States are the main subjects of international law and non-State actors are still only recognised to a limited degree, with very constrained rights and responsibilities. There is some recognition of international organisations, the ICRC has a special status, we have international criminal responsibility for individuals, and investors can have rights under international investment law – to cite some examples.  But this is still very limited.  

Yet at the same time, non-state actors have more power and more ability to engage and have impact across national boundaries than ever before.  I am talking about:

• multinational companies that operate apparently seamlessly across borders ;
• distant water fishing vessels flying the flag of one state, owned by a corporate entity in another, crewed and mastered by nationals of a third state;
• armed militias and terrorist groups;
• NGOs ranging from well-orchestrated and transparent membership-based organisations through to more amorphous covert actors such as Anonymous;
• And also the way in which individuals, aided by technology, can coalesce almost organically around particular issues, such as the “Me Too” movement or the recent climate strikes.

The consequence is that many of the current ‘wicked problems’ requiring international solutions cannot be solved by states alone.  Coming to terms with this and finding ways to engage with non-state actors to solve transboundary and global commons issues could be seen as the next frontier of international law.” 

My own take-away from the Colloquium is that, not only is international law under siege for various reasons, but the underlying aspects of the rule of law, at the global level, are up for re-examination.  Let me briefly try to encapsulate these below.  They are, to the extent they can each be captured in a word: jurisprudence, legitimacy, application, integrity and technology.

One paragraph on each – very much my own interpretations:

1. Jurisprudence

There was debate over whether the contemporary (1945-2019) ‘multilateral rules-based-order’ is experiencing a fundamental fragmentation, i.e. breaking down, or whether it is simply ‘enjoying’ a more vigorous input from different political systems (especially Confucian) beyond the traditional (Western) imprimatur.    The fundamental competing value systems of stability and liberty need some dialogue and reconciliation before a true jurisprudential foundation for ‘global law’ can be agreed.

2. Legitimacy

Victoria, and others, queried whether, in the 21^st c. world, international law can be exclusively state-centric and rest on consent, or whether it needs comparable input from private corporations.  Can international (global?) law be legitimate if the legislative process does not accurately reflect the spread of power/influence?  Or, should it remain state-centric or at least public in source, with advisory input from the private sector?

3. Application

Should international law continue to be applied primarily to States, or should the recent trend to apply criminal international and humanitarian law to individuals be continued?  To what extent should the success of the ICJ encourage the concept of ‘compulsory jurisdiction’, and to what extent should the travails of the younger ICC give reason for pause?

4. Integrity

To what extent should the principles of good faith and of sovereign equality be maintained with rigour, and to what extent should it be tempered in the ‘real world’ by an acceptance of ‘exceptionalism’?  To the extent the latter is accepted, how much is this compatible with purely US exceptionalism, compared with that by other major powers?

5. Technology

To what extent can international law keep pace with the extraordinary pace and depth of 21^st c. technological change?  How much of this ‘wicked problem’ applies to digital technology (social media) and how much to weaponry (nuclear weapons, autonomous weapons)?   How to define some of this?  Once defined, how to redress the stated problem?

Food for thought.  Areas for the Centre to explore.

My first column (9 Oct.) noted the ‘bipolar mind-set’ discernible among national leaders at the UN General Assembly debates in recent years.  An ‘intellectual rivalry’ was playing out between two apparent doctrines – ‘patriotism’ and ‘universalism’.

Both address the issue of a rules-based order, though from apparently different premises and reasoning. The debate revolves around two central principles of the UN Charter: national sovereignty and international law.

The debate is not new, but the modern pace of change and the onset of existential challenges put the framing of global problem-solving in starker relief than before.  The UN, with 193 Member States, is founded on the mid-20^th c. principle of national sovereignty, yet three-quarters of a century later the emerging global community faces global problems unanticipated back then.  How is this handled by today’s leaders?

At last year’s 73^rd UNGA session, the differences were clearly enunciated:

• US: … America will always choose independence & cooperation over global governance, control, and domination. We reject the ideology of globalism & embrace the doctrine of patriotism.  … responsible nations must defend against threats to sovereignty not just from global governance, but also from other, new forms of coercion and domination. …. protect our sovereignty and our cherished independence above all.
• NZ: This generation is a borderless one – at least in a virtual sense; one that increasingly see themselves as global citizens. We face what we call in New Zealand ‘wicked problems’; ones that are intertwined and interrelated.  …   New Zealand remains committed to continue to do our part to building and sustaining international peace and security; to promoting and defending an open, inclusive, and rules-based international order based on universal values.

The most explicit, if oblique, rebuttal of ‘patriotism’ as described by the US, came from France:

• … France promoting universal values … exact opposite of the egotism of a people who look after only their interests, because patriotism is the exact opposite of nationalism: nationalism is a betrayal of it. In saying ‘our interests first and who cares about the rest!’, you wipe out what’s most valuable about a nation, what brings it alive, what leads it to greatness and what is most important: its moral values.  Let’s again take the UN oath to place peace higher than anything.

The issue of national sovereignty in a globalising world surfaced again in this year’s 74^th Session’s Debate.

Warning against a ‘great fracture’, the UN Secretary-General opened with a call to avoid zero-sum politics and revive UN values.  He expressed fear of the world’s two largest global economies creating separate and competing worlds, each with its own dominant currency, trade and financial rules, Internet and AI capacities, and its own zero‑sum geopolitical and military strategies.

Everything possible must be done, said Guterres, to stop the world from splitting in two. He called on ‘global leaders’ to maintain a universal system governed by universal respect for international law and strong multilateral institutions.

The theoretical merge between multilateralism and nationalism in the 21^st c. was articulated by Slovenia.

• Clearly, the world is in transition and international organizations are trying to follow accordingly. In adjusting to shifting paradigms, it would be a grave mistake to do away with the fundamental principles that have guided the international community for nearly a century: sovereign equality, collective security, international law, good faith, pacific dispute resolution and human rights.

Other Member States, however, gave specific national reasons for promoting sovereignty. Stronger multilateralism was described as the key to tackling global challenges, but not at the expense of state sovereignty, a ‘bedrock principle’ of the UN Charter.

• Latvia argued that a strong multilateral, inclusive and rules-based international order was essential for global peace and security. But the multilateral order demands respect for sovereignty by all Member States.
• Belarus suggested the world today is ‘closer than ever to disaster’.  Modern issues such as ensuring peace and security, promoting sustainable development, and addressing climate change demonstrate the inadequacy of States acting alone.  Global challenges require effective, ambitious joint solutions. The UN should lead this because of its universal composition and mandate.  The 75^th session in 2020 ‘must not be for show’ or everyone will lose as the ‘sinister spectre’ of a third world war becomes a reality.
• Cambodia said that the emergence of a multipolar world should pave the way to peaceful coexistence.  But some powers, ‘under the pretext of universal values’, are fomenting a new form of global division. Using humanitarian reasons as a pretext to interfere in domestic affairs or provoke regime change was deceptive and deceitful. Increasingly serious threats to global security and the planet’s future are a direct consequence of weakening multilateralism.
• Myanmar warned that while the UN is at the heart of multilateralism, it must avoid the mistake of unilaterally extending its powers ‘without corresponding due diligence’.  Multilateral institutions should never be used as a tool for targeting Member States.  Such institutions should uphold the sovereignty of nations; none should have its value in the UN dependent on its wealth or influence.

The most forceful political articulation of national sovereignty came, unsurprisingly, from Brazil:

• The Amazon has been mistakenly called a ‘world heritage’ and its forests the ‘lungs of the world’.  In so doing, countries have disrespected Brazil in a colonialist spirit, questioning its most sacred principle, our sovereignty.  …  We are not here to erase nationalities and overrule sovereignty in the name of an abstract global interest.

National sovereignty, it seems, can be used as rationale for a variety of causes. It can be used to embrace the global interest – territorial integrity, multilateral sanctions, climate stability and maritime law.

• Ukraine: Every country has its own problems, but there is no longer such a thing as somebody else’s war.  We cannot think globally while turning a blind eye to small things.
• Lithuania: We need a stronger UN to respond more effectively to the illegitimate use of force and violations of sovereignty and territorial integrity.
• Laos: The embargo on Cuba should be lifted so that this sovereign country can enjoy economic and trade freedom.
• Tonga: Our sovereignty should not be compromised by the effects of climate change.
• Marshall Is: Illegal fishing is not only an economic menace, but a threat to sovereignty.

Yet it can also be used in defence of national sovereignty over global trends – against migratory flows, trans-national criminal jurisdiction, international electoral observation and global species-control.

• Hungary: The issue of migration again rules the issue of global affairs.  The UN has a responsibility to uphold international law.  Migration is not a fundamental human right, yet the UN promotes migration.  Instead of promoting human rights, the Global Compact promotes the movement of people.  This is unacceptable. The UN promotes the idea of encouraging migrants to violate sovereign borders.
• Philippines: While some claim that States erode multilateralism by asserting their excessive sovereignty, States are bound to protect their populations ‘by any means necessary.’ Multilateralism is threatened by its own vain attempts to usurp State functions and return the world to the anarchy of the pre-war period preceding the UN.
• Burundi: The electoral process in Burundi is an internal matter that comes under the remit of national sovereignty.  Any support to the process must be requested by its Government, in accordance with the UN Charter.  Any attempt to define a new role or redefine an existing role for the UN to address the Burundi elections would be a violation of national sovereignty and a breach of the Charter.
• Botswana: The Government is working with neighbouring States under the auspices of CITES to find sustainable solutions.  It proposed a one-off sale of ivory, which was regrettably rejected. Attempts to extend the scope of the Convention in a way that would infringe on sovereignty are equally disheartening.

What to make of this? The debate, as expressed, is between levels of identity and prescriptive behaviour. Is it amenable to an analytical-prescriptive framework that might facilitate a reconciliation of views?

From the statements made by Member States, there appears to be three levels of conceptualisation in international relations, with some nuanced differentiation within each.

• Universalism universal values; global citizenship; global governance; global interest
• Globalism economic, financial & trade globalization; incursion into national economies
• Multilateralism strengthened rules-based international order; UN institutional reform
• Internationalism cooperation for common ends; collective security; international law
• Nationalism national independence; sovereign equality; territorial integrity

International relations at the United Nations can be analysed in the above context.  Each conceptual level needs to be clearly defined, and the inter-relationships among them identified and explained, before a prescriptive framework that encompasses all recorded views can be advanced.

Introducing a degree of confusion is the concept of ‘patriotism’. Traditionally this has applied to national identity. But patriotism it is not an analytical concept; it is a political affiliation that can be applied to any level of analysis according to taste.

This is not to denigrate the notion of patriotism, but rather to acknowledge that the American and French exchange reflects a legitimate debate.  The added value from New Zealand is that a new generation will influence that debate, reflecting an emerging global community, over the next few decades.

The purpose of the Centre for Global Studies is to develop a framework for reconciling these apparent differences of view advanced at the UN with prescriptive comment – respecting national sovereignty and abiding by international law, while resolving global problems through genuine global solutions.

We intend to develop a project to that end over the coming year.

Jayden van Leeuwen’s column on UN peacekeeping and its accounting to the global community raises some important issues that thematically fall within the Centre’s global security programme.

Jayden addresses the problem of sexual abuse by personnel in UN peacekeeping missions – and the ‘startling lack of accountability’ applied to contributing member states.  The main barrier to accountability is the ‘legal status quo’ imposed by the Status of Forces Agreements under which individuals in UN missions are subject to the jurisdiction of the contributing State for any criminal offence committed in the host country.

As Jayden observes, the foundation of the UN system is state consent, so the UN can only pursue non-legal accountability, such as financial assistance to victims and support for whatever redress the contributing State decides, which is usually inadequate.   

The UN itself acknowledges that it lacks ‘the authority or legal mandate to criminally prosecute individuals’, and can only refer allegations to the ‘relevant national authorities’ for action.

The broader message of Jayden’s piece, I suggest, is this.  The inability of the UN to assert governance over criminal acts within operations established under its mandate highlights the inadequacy of our 20^th c. international system to deal with its responsibilities towards the emerging global community in the 21^st c.

The central concept in the UN Charter is the maintenance of international peace and security.  For this, chapter VII empowers the UN (through the Security Council) to resort to the legitimate use of force in the name of collective security.  The paralysis of the Council through the veto meant that collective security in response to aggression has not worked, the only significant cases being Korea (1951) and Iraq (1991).

In its place, the phenomenon of UN peacekeeping emerged, essentially as a backstop. Its origin was in unarmed UN truce observers (1948 Middle East; 1949 South Asia). UN peacekeeping involving armed troops commenced in 1956 (Middle East) but, under ‘classical peacekeeping’, force is to be used only in self-defence.

Since the early 1990s, ‘modern’ UN peace operations have developed, for both military stability and civilian rebuild. Proactive force may be employed against any action designed to thwart mission objectives. This applies across all regions where such operate – Africa, Middle East, Asia, Pacific and America.

All missions, however, have been reliant upon voluntary contributions from UN member States and governed by SOFAs in which responsibility for individual behaviour remains with the contributing State.  This extends to the enforcement missions as well as peacekeeping.   In Korea the original UNC (UN Command) was authorised by the Security Council on the basis that it would be under the operational command of the US with multinational forces which continues to this day.  The Council authorised the UN flag to fly alongside the national flags of contributing countries, but the operational and jurisdictional command remained with the US.  The recent development in which North and South Korea share observation responsibility, at the demilitarised zone, does not change this underlying framework.  In Japan, the UNC-Rear provides logistical supplies to the UNC in Korea under a SOFA between the UN and Japan which makes it clear that jurisdiction remains with the US.

Clearly, the UN is largely impotent in lacking any ability to control its peacekeeping forces, because of the 20^th c. constraint of State consent. The only way to resolve this is to progress beyond the practice of member State contributions to UN peacekeeping.

In 1992 the Security Council, noting the ‘new favourable international circumstances’ in a time of ‘momentous change’, requested the Secretary-General to recommend ways the UN could strengthen its work in peace and security.  The SG’s report (Agenda for Peace) proposed a conceptual framework: preventive diplomacy, peace-making, peacekeeping and peace-building.  Within peace-making, he proposed the creation of ‘peace enforcement units’ under his operational control as UN Secretary-General.  Although the report laid the basis for effective peacebuilding missions, the peace-making proposal for enforcement units was never adopted.

In 2000 the Brahimi Report, noting the broad criticism of slow peacekeeping deployment, proposed among other things a standing army and a standing police force.  The report did not mince its words.

Many Member States have argued against the establishment of a standing United Nations army or police force, resisted entering into reliable standby arrangements, cautioned against the incursion of financial expenses for building a reserve of equipment or discouraged the Secretariat from undertaking planning for potential operations prior to the Secretary-General having been granted specific, crisis-driven legislative authority to do so. Under these circumstances, the United Nations cannot deploy operations ‘rapidly and effectively’ within the timelines suggested.

In 2015, the Horta Report sought to strengthen the contemporary peacekeeping system.

The Panel believes it is past time to institutionalize a framework to engage troop-and police-contributing countries and the Secretariat to truly forge a common and realistic understanding of the mandate and what capabilities and standards are required to implement the mission.

The conclusion is that, despite the three reports, nothing substantive has been done by Member States to fundamentally change the operational nature and jurisdictional framework of UN peace operations since its inception.  Changes have been made at the margin and these have made a useful difference, but marginal improvement is not fundamental change.

Until the nature of the mission progresses to a qualitatively new framework with a standing UN contingent, directly recruited, financially and logistically supported, operating under the direct jurisdiction of the UN Secretary-General, and accountable to the UN operationally and to the ICC for any individual criminal liability, we shall not be answering properly to the legitimate interest of the global community of peoples.