A World of Law, Not Men

January 06, 1995|By JONATHAN POWER

London -- Step by step, measurable progress is being made in pushing back the frontiers of international law. The last few decades have seen an explosion of treaty writing. On occasions this process of law making can move quite fast -- the 1988 Convention against Drug Addiction and Illicit Trafficking, and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.

The U.N. Charter established the International Court of Justice, the World Court. This ''cathedral of law'' may be the most imaginative of all the constructs of the U.N.'s founding fathers. But the court needs to be strengthened.

It is limited to hearing cases only between states. Moreover, it has jurisdiction only when disputing states agree to abide by its decisions. Too few countries give this consent automatically.

The Security Council, the General Assembly and other organs of the U.N. have the power to request advisory opinions from the court. If this power were extended to the secretary general, as suggested by the Commission on Global Governance in its soon-to-be-published report, he could refer the legal dimensions a brewing dispute to a court of law. Besides providing a useful cooling-off period, such a step might offer contending parties an honorable exit from a head-on collision.

Another reform might be to permit the court to review rulings of the Security Council, at least on procedural matters. At present the Security Council is considered the supreme organ of the U.N. It can, if it chooses, refuse requests to implement the court's decisions. Yet there are powerful arguments for allowing judicial review.

In the dispute stemming from the downing of an American airliner over Lockerbie, Scotland, Libya has been required by the Security Council to extradite suspects who are its citizens.

However, under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aircraft, Libya has the right to try these men at home. If the court did have power of judicial review this tug-of-war could be ended, legally at least.

The Libyan dispute would be easier to resolve if there were an international criminal court. This concept has been discussed since 1945, and only very recently the International Law Commission agreed on the statutes for a proposed court. It is a natural step in the steady extension of international jurisdiction over crime, as in the treaties that outlaw genocide, torture and other crimes against humanity.

An ad-hoc criminal court now exists for war crimes in Rwanda and the former Yugoslavia. Some argue that ad-hocery is the way to proceed, but a permanent international criminal court would eliminate the delays that are inevitable if new structures have to be created for each particular situation.

International law offers the world its best choice of avoiding war. If law were observed, military might -- and even the enforcement procedures of the Security Council -- would become increasingly redundant.

Yet if there is no law, all the enforcement in the world will not achieve its objective.

Many of the norms of international law, particularly on human rights, are already respected by domestic courts. Many regional institutions already operate by international law, such as the European Court of Justice.

The World Bank has its own legal tribunal for arbitrating investment disputes.

How far we are prepared to subordinate national loyalties before a law that transcends individual cultures and societies, but is just and avoids conflicts?

A number of ''good global citizen'' states need to take the lead if we are to build a world of ''laws, not of men,'' in which the powerful or the cruel do not necessarily get their way and the vulnerable and preyed-upon have the chance to show that nobody and no nation is above the law.

Jonathan Power writes a column on the Third World.

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