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COMMENTS
Who Does International Law Serve?
Maxim Mateykovich,
Tyumen State University (Tyumen, Russian Federation)
Alexander Skorobogatko,
Kutafin Moscow State Law University (MSAL) (Moscow, Russian Federation)
https://doi.org/10.21684/2412-2343-2024-11-3-149-158
Abstract. International law is an effective tool for preventing and resolving conflicts between countries, as well as for facilitating their efficient cooperation in the fields of security, trade, and the protection of human rights. With the emergence of interstate bodies that accept appeals from citizens who disagree with the way their interests were protected within the state, the scope of international law has expanded to include not only the states and their peoples (which is why this law is called "international") but also individuals who can now be considered subjects of international law. However, in recent years, the authority of international law has seriously weakened. The reasons for this are the selective attitudes toward the fulfillment of obligations assumed by individual governments, "double standards" in the application of generally recognized norms and principles to different states, and outright pressure exerted on interstate bodies by countries claiming global hegemony. The authors prove that international law can well regain its former trust and effectively serve its purposes of promoting peace, universal security, and justice. They support their claim by providing examples of such interstate associations as BRICS, the Shanghai Cooperation Organization, and the Eurasian Economic Union, which are based on and successfully operate on the principles of multipolarity, equality, and mutual respect. The article highlights the efforts made by the Russian Federation and the People's Republic of China aimed at the strict observance of the principles of state sovereignty, human rights, and freedoms, including the right to speak one's native language, as well as the principles of equality and justice in resolving disputes that arise in international relations.
© Mateykovich M., Skorobogatko A.
2024 CC BY-NC-ND 4.0
Keywords: international law; United Nations; BRICS; international organizations; Minsk Agreements; state sovereignty; hegemony.
Recommended citation: Maxim Mateykovich & Alexander Skorobogatko, Who Does International Law Serve?, 11(3) BRICS Law Journal 149-158 (2024).
James William Fulbright, the longest serving chairman of the United States Senate Committee on Foreign Relations (from 1959 to 1974), famously said,
insofar as international law is observed, it provides us with stability and order and with a means of predicting the behaviour of those with whom we have reciprocal legal obligations.1
Well said. He played a major role in the founding of the United Nations (U.N.). He headed the Senate International Committee at the height of the Cold War and, evidently, had a genuine desire to prevent the Cold War from escalating into a "hot" one.
The preamble encapsulates the quintessence of the purpose, objectives, and meaning of any legal act, including international law. An excerpt from the Preamble of the U.N. Charter reads as follows:
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.2
In other words, the U.N. was conceived as the main guarantor of what is enshrined in international law. What then is "international law"? Like any law in the objective sense, it is a set of rules, including those of a general nature (principles), enshrined in written sources (treaties) and unwritten norms (customs), on the basis of which sovereign states interact with each other. Often, as part of such interaction, states delegate a portion of their sovereignty to the interstate associations they have created (such as the U.N.). The development of states themselves ultimately leads to the modernization of the norms and principles of international law. Thus the circle of those benefiting from the existence of international law broadens with time. A number of authors have attempted to shed light on the constantly evolving role of
Quotes by "J. William Fulbright," WhatShouldIReadNext.com (June 12, 2024), available at https://www. whatshouldireadnext.com/quotes/authors/j-william-fulbright.
Quoted from the official United Nations website (June 12, 2024), available at https://www.un.org/ en/about-us/un-charter/full-text.
international law for three distinct yet interconnected groups: states, international organizations, and individuals.3
Although the roots of international law can be traced back far longer, its formation was shaped essentially by European ideas about nation-states and sovereignty, which required a set of rules regarding accepted standards of behavior and evolved organically over the past 400 years.4 At the very core of international law, we find a trade-off: sovereign states voluntarily agree to give up a portion of their sovereignty in exchange for greater security, recognition, and respect in the international arena, as well as to improve the settlement of international disputes. International law not only provides states with an opportunity to improve a specific country's relationship with other international actors, but it also provides an effective legal framework on which countries and people can rely on. As a consequence, the system of international law primarily operates on the basis of self-interest and reciprocity rather than fear of law and its enforcement, and the instruments used to implement it vary greatly. It should also be mentioned that international law is just as much a domestic as it is a global phenomenon: international actors are far more inclined to adhere to international law when they internalize it via their domestic legal systems.5
From the mid-19th century onwards, a number of organizations and conferences emerged, most prominently the International Committee of the Red Cross and the Geneva Conventions, which were established in 1863 and 1864, respectively, with the aim of "humanizing" conflict.6 During the second part of the 20th century, the number of international organizations grew rapidly with the creation of the World Health Organization (1948), the U.N. Human Rights Office (1976), the World Trade Organization (1995), and others, demonstrating an increasing trend of globalization in international law. Openness and transparency in conflict resolution, reliance on international norms in the development of municipal legal systems, and the role of international law in international trade have all become increasingly central to modern diplomacy.
International law is also crucial in countering and creating barriers to the expansionist policies of states claiming hegemony and pursuing neocolonial policies, as well as in creating a fairer society for small states to exist in. In addition to the principal judicial organ of the United Nations (otherwise known as the International Court of Justice), a number of ad hoc tribunals are now available. In particular, in pursuance of the Agreement signed on 8 August 1945, by the Government of the
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6
Beth A. Simmons, International Law, in Handbook of International Relations 352 (2012) (June 12, 2024), available at https://scholar.harvard.edu/sites/scholar.harvard.edu/files/bsimmons/files/ch_14_-_ international_law.pdf.
Harold H. Koh, Why Do Nations Obey International Law?, 106(8) Yale L.J. 2599 (1997) (June 12, 2024), also available at https://openyls.law.yale.edu/bitstream/handle/20.500.13051/9044/84_106YaleLJ2 599_1996_1997_.pdf;jsessionid=C91FC717EDE7523749E406B88D8AE463?sequence=2.
Ruth B. Russell, The Evolution of International Organizations, 61(4) Am. Pol. Sci. Rev. 1185 (1967).
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Malcolm N. Shaw, International Law 13 (9th ed. 2021).
United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics, there was established an International Military Tribunal for the just and prompt trial and punishment of the major war criminals of Nazi Germany and the European Axis.7
The Proclamation Defining Terms for Japanese Surrender, issued at Potsdam on 26 July 1945 by the President of the United States, the President of the National Government of the Republic of China, and the Prime Minister of Great Britain, established the rule that stern justice shall be meted out to all war criminals, including those who have visited cruelties upon their prisoners.8 During the work of the International Military Tribunal for the Far East (IMTFE) from 3 May 1946 to 12 November 1948, the facts that came to light of mass murders committed by Japanese punitive forces were strongly condemned, including the widely known Nanjing Massacre, which claimed the lives of more than 300 thousand residents of the city and Chinese military personnel.9
Thus, international law plays a crucial role in combating state expansionist policies and creating a more equitable society in which small states can also thrive. The application of international law emphasizes the principle of equality, regardless of sovereign authority. States can contribute to the advancement of international law through their participation in international treaties and organizations such as the Human Rights Council and the BRICS organization, which emerged as a conscious response to correct the geopolitical imbalance. BRICS originally started out as BRIC (or Brazil, Russia, India, and China), and the organization expanded for the first time with the entry of South Africa in 2011, making "BRICS" a strong element in multipolarity. The year 2023 has become historic, with some three dozen countries queuing to join the group seen as an alternative space to the dominant order.10
Unfortunately, the current norms and principles of international law and the international institutions created in accordance with them are far from always capable of protecting the interests of states that oppose the neocolonial policies of countries that claim world domination. It is enough to recall a historical judgment delivered by the U.N. International Court of Justice on 27 June 1986, which obliged the United States to make
United Kingdom of Great Britain and Northern Ireland, United States of America, France and Union of Soviet Socialist Republics, Charter of the International Military Tribunal - Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis ("London Agreement"), United Nations, 8 August 1945 (June 12, 2024), available at https://www.refworld.org/legal/ constinstr/un/1945/en/21123.
Quoted from the website of the National Diet Library (June 14, 2024), available at https://www.ndl. go.jp/constitution/e/etc/c06.html.
Савенков А.Н. Нюрнбергский процесс и развитие международной уголовной юстиции: специализированный учебный курс [Alexander N. Savenkov, The Nuremberg Trials and the Development of International Criminal Law Justice: Specialized Training Course] 253 (2022).
Rajiv Bhatia, BRICS Under Russian Chairship, BRICS Portal, 15 March 2024 (June 14, 2024), available at https://infobrics.org/post/40715.
reparations to the Republic of Nicaragua for the damage done by the American military and paramilitary operations in the territory of the republic in the 1980s. Subsequently, the International Court of Justice effectively exposed the hypocritical arguments about the U.S. "humanitarian intervention." The Court stated that the protection of human rights is incompatible with the mining of ports, the destruction of buildings, and the training, arming, and equipping of terrorists.11 According to the documents provided by Nicaragua in accordance with the established procedure, the damage was estimated at tens of billions of dollars. Nevertheless, the United States has been disregarding that judgment for the past thirty-seven years.12
Some countries demonstrate a selective attitude and apply different standards to the fulfillment of their obligations. Thus, the"elected" states have undermined trust in the authority of international law. A prime example is the famous U.N. Security Council Resolution No. S/RES/2202 on Ukraine approved unanimously on 17 February 2015. All members of the Security Council, collectively, supported a "Package of Measures for the Implementation of the Minsk Agreements," which were adopted and signed in Minsk on 12 February 2015 by the Presidents of the Russian Federation, Ukraine, France, and the Chancellor of Germany. In the preamble to the resolution, members of the U.N. Security Council expressed their firm conviction that the situation in the eastern regions of Ukraine can only be resolved through a peaceful resolution of the current conflict.13
However, in December 2022, in an interview with the German newspaper"Die Zeit," former German Chancellor Angela Merkel and, a little later, former French President Hollande described the conclusion of the Minsk agreements as an attempt to give Ukraine time to become stronger. They said it was clear to everyone that the conflict was frozen and the problem was not solved; it merely allowed Ukraine to gain time.14 This attitude towards international law is absolutely unacceptable. As the President of the Russian Federation noted on 14 June 2024, the establishment of multipolarity and multilateralism in international affairs, including respect for international law, would make it possible to resolve the most complex problems together for the common benefit of all parties, and to build mutually beneficial relations and cooperation between sovereign states that would ensure the well-being and security of all peoples.
МатейковичМ.С. Защита избирательных прав граждан в Российской Федерации [Maxim S. Mateykovich, Protection of Citizens' Voting Rights in Russia] 304 (2003).
12 Foreign Ministry Spokeswoman Maria Zakharova's reply to a media question regarding the anniversary of the decision of the UN International Court of Justice in The Republic of Nicaragua v. The United States of America case delivered on June 27, 1986, Ministry of Foreign Affairs of the Russian Federation, 4 July 2023 (June 14, 2024), available at https://www.mid.ru/ru/foreign_policy/news/1895378/?lang=en.
13 Совет Безопасности ООН единогласно одобрил резолюцию по Украине // UN News. 17 февраля 2015 г. [U.N. Security Council Unanimously Approves Resolution on Ukraine, UN News, 17 February 2015] (June 15, 2024), available at https://news.un.org/ru/story/2015/02/1258321.
14 Russia Was Doing its Utmost to Prevent War, Protect Donbass People's Rights - Kremlin, TASS, 3 August 2023 (June 15, 2024), available at https://tass.com/politics/1656359.
Such a vision for the future aligns with the aspirations of the vast majority of countries. This is evident, among other things, in the growing interest in the work of a universal association such as BRICS, which is based on a culture of trust-based dialogue as well as sovereign equality and mutual respect among its members.15
International organizations are active participants in international law; they can play a direct role in the development of certain fields of international law and, at the same time, be active members of treaties involving states as other participants. Whether the increasing role of international organizations in international law can be considered a beneficial process or not is a question that has sparked debates among scholars and state officials around the world. For example, Jan Klabbers, in his intriguingly titled article "The Cheshire Cat That Is International Law" skillfully points out that international organizations are undemocratic and face little to no judicial review of their reports and actions.16 Naturally, such an argument raises the question of the potential exploitation of international law by international organizations, and it is undeniable that the full accountability of international organizations remains elusive.17 Yet, despite all their imperfections, these international organizations play a key role in creating an environment in which both states and individuals can reach mutually beneficial agreements, work on policy development, resolve conflicts, and combat terrorism. The role of international organizations is amplified through international law, trade, and social agreements, all of which can be facilitated through organizations such as BRICS, the Eurasian Economic Union, and the Shanghai Cooperation Organization (SCO).
As mentioned, not only states and international organizations but also individuals are considered subjects of and benefit from international law. This was not always the case; indeed, historically, the role of individuals in international law was that of objects rather than subjects.18 However, this is rapidly changing with the role that individuals are able to play in the international arena; today, international law not only concerns state sovereignty but also the rights of the people within its territory or dominion.19 Individuals possess the right to international legal claims for protection and assistance in acute emergencies. International law also gives individuals an opportunity to seek justice against states when national law is ineffective. This provides an additional opportunity for those who are being oppressed in their
15 Meeting with Foreign Ministry Senior Officials: Vladimir Putin Held a Meeting with the Senior Officials of the Russian Foreign Ministry, Kremlin.ru, 14 June 2024 (June 15, 2024), available at http://en.kremlin. ru/events/president/news/74285.
16 Jan Klabbers, The Cheshire Cat That Is International Law, 31(1) Eur. J. Int'l L. 269 (2020).
17 Kristen E. Boon & Frédéric Mégret, New Approaches to the Accountability of International Organizations, 16(1) Int'l Org. L. Rev. 1 (2019).
18 Solomon E. Salako, The Individual in International Law: "Object" versus "Subject", 8(1) Int'l L. Res. 132 (2019).
19 Mark W. Janis, Individuals as Subjects of International Law, 17(61) Cornell Int'l L. J. 61 (1984).
respective countries, including indigenous groups, various minorities, and those who face difficulties in getting representation at the national level.20 A striking example is the already mentioned Minsk Agreements of 2015, which secured the linguistic sovereignty of the residents of the Donetsk and Luhansk regions (now known as the Luhansk People's Republic and the Donetsk People's Republic).21
Another notable example of international law being effective at prohibiting discrimination and defending human rights is the Cakir v. Belgium case from 2009. In this case, a Belgian citizen of Turkish descent applied to the European Court of Human Rights for an alleged violation of his human rights by Belgian police during his arrest, arguing that his ill-treatment was racially motivated. The court held that the policemen violated Article 14 and Article 3 by subjecting Cakir to degrading treatment during his arrest. The ruling was in favor of the applicant; Belgium paid 15,000 euros for non-pecuniary damages and 6,681.10 euros for costs and expenses.22
Since 1998, the Russian Federation has also recognized the jurisdiction of the European Court of Human Rights and complied with its decisions. However, on 16 March 2022, the Committee of Ministers of the Council of Europe, in gross violation of the Statute of the Council of Europe, adopted a resolution on the cessation of the Russian Federation's membership in the Council of Europe as of that date.23 In other words, the Russian Federation proceeds from the fact that the international treaties of the Council of Europe ceased to apply to Russia from 16 March 2022 and has not complied with the decisions of the European Court since that date.24
However, citizens of the Russian Federation are not left without international protection of their rights. They can still appeal to the U.N. Human Rights Committee. In addition, the Constitutional Court of the Russian Federation accepts complaints from individuals about violations of their constitutional rights and freedoms and
Joseph B. Kelly, National Minorities in International Law, 3(253) Denver J. L. & Pol'y 253 (1973).
Комплекс мер по выполнению Минских соглашений // Организация по безопасности и сотрудничеству в Европе [The Package of Measures for the Implementation of the Minsk Agreements, Organization for Security and Co-operation in Europe] (June 15, 2024), available at https://www. osce.org/files/f/documents/5/b/140221.pdf.
Cakir v. Belgium, No 44256/06, Judgment 10.3.2009 [Section II], Information Note on the Court's Case-Law No. 17, 2009, The Law on Police Use of Force Worldwide (June 15, 2024), available at https:// www.echr.coe.int/documents/d/echr/CLIN_2009_03_117_ENG_852740.
Resolution CM/Res (2022)2 on the cessation of the membership of the Russian Federation to the Council of Europe (adopted by the Committee of Ministers on 16 March 2022 at the 1428th Meeting of the Ministers' Deputies), Council of Europe (June 15, 2024), available at https://rm.coe. int/0900001680a5ed96.
Федеральный закон от 28 февраля 2023 г. № 43-ФЗ «О прекращении действия в отношении Российской Федерации международных договоров Совета Европы» // Официальный интернет-портал правовой информации [Federal Law No. 43-FZ of 28 February 2023. On the Termination of International Treaties of the Council of Europe in Relation to the Russian Federation, Official Internet Portal of Legal Information] (June 15, 2024), available at http://actual.pravo.gov.ru/content/con-tent.html#pnum=0001202302280017.
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actively refers to international legal acts and legal positions of interstate bodies in its decisions.
The People's Republic of China also always demonstrates an example of respect for the norms and principles of international law.
In the realm of international law, the People's Republic of China represents an important case study that, owing to the country's emergence as one of the world's foremost rising powers, has been widely studied. Over the past three decades, Beijing has ratified numerous legally binding international agreements aimed at strengthening its international standing and helping to develop its economy. One of the early and most important of such agreements was the Sino-British Joint Declaration on Hong Kong, which settled the conditions under which the then British colony of Hong Kong was transferred to Chinese control in 1997, thus ending an almost century-old territorial dispute.25 On the other hand, while China has always been in favor of developing legal frameworks boosting international trade, it has been consistent in its reservations regarding international arbitration in the international agreements ratified by Beijing. Yet in order to ensure smooth cooperation with its partners, the country has always been ready for compromise in some cases. For example, given that arbitration is a core component of the international trading system, China agreed to its practice following its membership in the World Trade Organization in 2001, which was made on significantly harsher terms than it was for other (then) developing countries.26
In most areas, however, the People's Republic has been adamant about not making legally binding commitments to international law, particularly with regard to the key questions of security and national sovereignty. One of the main arguments put forward by Beijing is that international law does not apply to all countries equally but instead serves as a vehicle for certain states to apply pressure on other countries, a practice that has long been eroding national sovereignty. Simultaneously, despite protesting against the hijacking of international law by a select number of countries and pointing out that time and time again international law has exhibited its inability to protect human rights and freedom and limit its commitments, Beijing is nevertheless making conscious efforts to be a reliable partner. On 1 July 2023 the Chinese "Law on Foreign Relations" became effective, which provides a comprehensive framework for the country's foreign relations with the stated aim to"safeguard China's sovereignty, national security, and development
Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, in Treaty Series: Treaties and International Agreements Registered or Filed and Recorded with the Secretariat of the United Nations 33 (1994) (June 15, 2024), available at https://treaties.un.org/doc/Publication/UNTS/Vol-ume%201399/v1399.pdf.
Lee Branstetter & Nicholas Lardy, China's Embrace of Globalization, NBER Working Paper No. 12373 (July 2006) (June 15, 2024), available at http://www.nber.org/papers/w12373.
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interests, and protect and promote the interests of the Chinese people."27 The law states that applications of foreign-related fields must comply with the basic principles of internarial law and with the governing norms of international relations.
To conclude, international law is an instrument of high complexity that lies at the disposal of all international actors willing to use it. It may be used by states to resolve a territorial dispute, international organizations to battle the consequences of food shortages in Africa, or individuals who were unable to receive a just and fair response from the municipal law system of their respective countries. Kofi Annan, the 7th Secretary-General of the United Nations, stated in an interview that "international law now grants rights to all human beings, not only to citizens."28 His words may ring true, but this by no means translates to an ideal system. On the contrary, international law and its institutions are, by their very nature, imperfect,29 which in theory provide an ever-expanding framework for cooperation and dispute mitigation, but often end up being utilized by a certain number of countries for their own goals.
References
Aristodemou M. A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours, 25(1) European Journal of International Law 35 (2014). https://doi.org/ 10.1093/ejil/cht080
Boon K.E. & Mégret F. New Approaches to the Accountability of International Organizations, 16(1) International Organizations Law Review 1 (2019). https://doi. org/10.1163/15723747-01601001
Janis M.W. Individuals as Subjects of International Law, 17(61) Cornell International Law Journal 61 (1984). http://doi.org/10.2139/ssrn.1101693
Kelly J.B. National Minorities in International Law, 3(25) Denver Journal of Law and Policy 253 (1973).
Klabbers J. The Cheshire Cat That Is International Law, 31(1) European Journal of International Law 269 (2020). https://doi.org/10.1093/ejil/chaa018
Koh H.H. Why Do Nations Obey International Law?, 106(8) Yale Law Journal 2599 (1997).
Russell R.B. The Evolution of International Organizations, 61(4) American Political Science Review 1185 (1967). https://doi.org/10.1017/S0003055400224829
Law on Foreign Relations of the People's Republic of China (adopted at the Third Meeting of the Standing Committee of the 14th National People's Congress on 28 June 2023), Ministry of Justice of the People's Republic of China (June 15, 2024), available at http://en.moj.gov.cn/2023-07/11/c_901729.htm.
Leigh Sujanto, The Most Powerful Thing Businesses Need to Succeed: Nobel Peace Prize Winner and Former UN Secretary-General Kofi Annan Delivers a Powerful Message: "Business Cannot Prosper in Societies That Fail. Here's Why, Acuity Magazine, 1 December 2016 (June 15, 2024), available at https://www.acmt-ymag.com/people/the-most-powerful-thing-businesses-need-to-succeed.
Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours, 25(1) Eur. J. Int'l L. 35 (2014).
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Salako S.E. The Individual in International Law: "Object" versus "Subject", 8(1) International Law Research 132 (2019). https://doi.org/10.5539/ilr.v8n1p132
Shaw M.N. International Law (9th ed. 2021).
Information about the authors
Maxim Mateykovich (Tyumen, Russian Federation) - Chairman, Judiciary, Second Cassation Court of General Jurisdiction, Professor, Tyumen State University (10 Semakova St., Tyumen, 525003, Russian Federation; e-mail: mat-maxim@yandex. ru) - corresponding author.
Alexander Skorobogatko (Moscow, Russian Federation) - Assistant to the Chief Judge, Second Cassation Court of General Jurisdiction, PhD Student, Department of Criminal Law, Kutafin Moscow State Law University (MSAL) (9 Sadovaya-Kudrinskaya St., Moscow, 125993, Russian Federation; e-mail: skorobo4@gmail.com).
