The United Nations

The United Nations Congress on Public International Law was held in New York on 13-17 March 1995. The first of its kind, it coincided with the 50th year of the United Nations. One thousand international delegates met under the banner 'Toward the Twenty-First Century: International Law as a Language for International Relations'.

Among the academics, government representatives, ambassadors, judges and UN officials was a varied Australian contingent including Lucinda Jones, from the Australian Law Reform Commission. She introduces an address by Sir Ninian Stephen on reaching expectations through process and practice.

Tremendous, yet exuding the faded sterility of the 1950s, the UN headquarters beside New York's East River provided an architectural metaphor for the issue confronting the Congress: how to ensure that the architecture of public international law does not become similarly dated.

Public international law governs the relations between states. The Congress focused on the development and implementation of this law with an emphasis on the role of institutions such as the International Court of Justice in settling disputes without resort to armed conflict.

International law is universal in its application and the Congress highlighted the often troubled balance between national sovereignty and international responsibility. The role of national courts, particularly in upholding human rights, was discussed in the context of the expanding scope of humanitarian law.

The Congress was significant because, at a time when the UN is being criticised for its impotence in maintaining world peace, we could see tangible evidence of a commitment to reform. Sir Ninian Stephen, former Australian Governor-General and High Court Judge, addressed the Congress with a far-sighted paper on the future of international law. Sir Ninian is currently serving as a Judge on the International Criminal Tribunal for the Former Yugoslavia. His paper follows with his kind permission.

Meeting expectations through process and practice

Looking at the title of today's topic, Towards the Twenty-First Century: New Challenges and Expectations, I was reminded that expectation is nurtured on experience. How one views the future and its challenges must largely depend upon one's own experiences of the past: expectations will be just as various as have been past experiences.

This should mean that, due to our past experiences, our expectations of the twenty-first century - of its challenges and how they should be met - will be different from the expectations of past generations. We live in an age which has fewer illusions than any about the absolute evil of warfare, an evil which in this century has been made more absolute than ever before by the inventive genius of mankind.

Growth of the global community

It is not by chance that this revolution has been coincidental with the first fifty years of existence of the United Nations. Despite the restraints that cold war conditions imposed upon the United Nations for so long, the high ideals expressed in its charter have nevertheless provided constant inspiration: more than that, its actions have produced real achievements which have added immeasurably to human welfare.

Today we have grown perfectly accustomed to the prospect of nations assuming obligations and undertaking burdens internationally that would have been unthinkable 60 or 70 years ago. The world of the 1920s and 30s, its politicians and its peoples, could not have imagined today's spending of vast sums from national resources (albeit much less than is needed) on foreign aid, the achievements of United Nations agencies in so many areas of human welfare, or still less the furnishing of troops and material in great quantities for peacekeeping missions in distant lands.

The spending of treasure and the risking of lives, which these and so many other current international activities represent, were not so long ago only acceptable if justified by considerations of narrow national self-interest.

Today, essentially through the agency of the United Nations, we have moved far from that stance, and when the generations now living look to the future we do so with minds surely more accustomed to change than those of any earlier generation before us. The task, then, of predicting what challenges lie ahead is more difficult than ever before, if only because the range of possibilities has become so wide. If future challenges are to be at all as astonishing as those which we have encountered in this 20th century they are largely unpredictable.

Perhaps the more profitable task is not strictly one of prediction but rather of the expression of reasonable hopes - hopes as to the shapes that developments in international law may take in the next century.

International law and preventative diplomacy

To think of all the tools of international law as vital parts of one system of preventive diplomacy is, I believe, a useful concept. It is one encouraged by a reading of article 33 of the United Nations Charter which enjoins nations in dispute to have recourse to the whole range of available dispute resolution processes, from negotiation to judicial settlement and resort to regional agencies or arrangements.

The Secretary-General, in his 'Agenda for Peace', defined preventive diplomacy as 'action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur'.

The second of these three situations, that of existing disputes having to be resolved before they escalate into open conflict, is, of course, traditional territory for lawyers. For centuries they have applied processes of adjudication and conciliation to mankind's disputes.

But in the first of the Secretary-General's three situations, that of the initial prevention of disputes from ever arising, lawyers also have a distinct role to play. The prevention of disputes depends in great measure upon the tacit acceptance by potential disputants of a determinative code of conduct, that is, the acknowledgment that in the sphere in which they are operating the rule of law applies and norms of conduct exist.

The development of the modern-day multilateral treaty regime - largely a phenomenon of the past 50 years - has already promoted a set of widely accepted norms of international conduct in many areas, necessarily reducing and often eliminating potential areas of dispute. What were hitherto areas of extreme uncertainty have increasingly been covered by internationally agreed codes of conduct and whole new areas of international conventional law.

One modest hope for the future must surely be that this international law-making process, very much the work of international lawyers, will continue with undiminished vigour. There will, of course, always be areas unsuited to uniformity of regulation. However in a world drawing ever closer together the need for, and the benefits of, a common understanding in the major areas of international concern are undoubted.

The International Court of Justice

It was interesting to hear Professor Sohn [George Washington University, Washington DC] suggest, with this need in mind, that in cases of doubt national courts might, through the intervention of the United Nations filtering process, seek advisory opinions from the International Court of Justice. Interesting, too, was President Bedjaoui's [President of the ICJ] response that states might seek such advisory opinions on behalf of their courts.

Developments along these lines, with national courts being encouraged to have recourse to international guidance in the understanding of the ever-expanding areas of international law, is then a further hope for the future.

However, it is in the Secretary-General's second area of preventive diplomacy - preventing the escalation of disputes into conflicts - that the institutions of international law can have their greatest effect. This is surely where we should have the greatest expectations of new developments.

One thing that article 33 of the United Nations Charter makes clear, and that international lawyers can never afford to lose sight of, is that both arbitration and judicial settlement are only two of a number of means for seeking a peaceful solution to a dispute between states.

Lawyers may have an instinctive preference for litigious processes since they lie at the very heart of their craft, but the importance of the fact finding, reporting, negotiating and mediation processes of the United Nations and of action on the political and diplomatic plane must never be lost sight of. However, the availability of legal adjudication plays its part in each process because as Sir Robert Jennings [the then President of the ICJ] said in his address to the General Assembly in November 1991, many cases are settled diplomatically before ever reaching the Court 'when the possibility of resort to the Court as an option is brought up in negotiation'.

In the same address Sir Robert advocated, as had the Secretary-General earlier, much greater use of advisory opinions by the Security Council, the General Assembly and other bodies entitled to involve the ICJ's advisory jurisdiction. They had, he said, a valuable role to play, even in highly political matters, complementary to other diplomatic and political means of dispute resolution.

So one hope for the future is that the ICJ will become increasingly regarded as an integral part of the work of preventive diplomacy pursued within the United Nations. In addition, hopefully all member states will accept the general jurisdiction of the ICJ without any reservation, something that the Secretary-General has urged should occur before the end of this decade of international law.

This may seem optimistic, but in this congress we have heard of the present trend towards compulsory international conciliation in Europe, the Valetta Mechanism, and of the special significance of regional groupings in which common interests and characteristics make the acceptance of compulsory jurisdiction within a region easier to accomplish. It may not be far-fetched to contemplate the growth of enough universal common interests to make universal acceptance of the ICJ's jurisdiction a reality, if not in this century, at least in the lifetimes of some of us.

The ICJ has already experienced a considerably increased flow of cases for decision. A new development, remarked upon in the latest yearbook of the Court, has been the settlement out-of-court of a number of cases after the initiation of proceedings. This is a development encouraged by the Court and represents the beginning of a closer relationship between the ICJ's adjudicatory role and normal diplomatic negotiations with the ICJ as a partner in preventive diplomacy rather than as a last-resort alternative.

This need not - and in my view should not - involve any dilution of the ICJ's judicial function. As Mr Torres Bernadez [Ad Hoc Judge of the ICJ] has said earlier, a clear division should be maintained between the judicial and other functions such as mediation and arbitration. If increased pressure of work necessitates changes in the ICJ's procedures in the future, I hope that the virtue of one aspect of the present system - the way in which each judge considers the case before the Court and forms his or her own conclusion without the intervention of a rapporteur - will not lightly be sacrificed on any ground of expediency.

The Permanent Court of Arbitration

Soon to celebrate its centenary, the PCA has now commenced a program which will result in it virtually recreating itself. This program is aimed at increasing international awareness of the facilities and services it offers, and at modernising its system of dispute settlement.

The PCA has already adopted two new sets of optional procedural rules - one for disputes between states and another for disputes where only one of the parties is a state. It is creating a procedure designed to reduce the cost and inconvenience to parties in distant parts of the world of having to come to The Hague - instead allowing for the resolution of disputes under its aegis to take place wherever the parties find it mutually convenient. A steering committee has also been established to consider, among other things, whether the 1907 Hague Convention needs revising.

The PCA recognises that it must make itself capable of being more useful to states and other actors in the international sphere. Since of the seven methods of dispute resolution listed in Article 33 of the Charter it offers no less than four - inquiry, mediation, conciliation and arbitration - it can serve as a valuable complement to the ICJ.

Co-ordination of effort

Turning from institutions to processes, the roles of mediation, of facilitation and of fact finding have assumed new importance as the UN and member states have become increasingly involved in peacekeeping measures - and in otherwise dealing with each other in a post cold war environment. It is in the interests of states to promote the development of expertise in these areas and one can hope for an increased willingness in the future on the part of states to use facilities offered by the UN and other institutions particularly regional ones. States must be prepared to be truly active in the development of new ways of resolving international disputes on the basis of international law.

A Permanent International Criminal Court?

Each is an ad hoc creation, needed to deal with a specific problem. Their setting up required the Security Council, the General Assembly and, above all, the Secretariat to divert much time and resources to the task. Member states are also being called on to make changes to their domestic laws to ensure that they can comply with their obligations under the statutes of the two tribunals.

All this has emphasised the need for a permanent international criminal court. Not only would it have avoided the need for the creation of these two tribunals but it would have avoided confining to only Rwanda and former Yugoslavia the prosecution of serious breaches of humanitarian law, which, as we know, are occurring elsewhere as well.

Such a court has been mooted for many years. It has been given new momentum by the General Assembly in the last few years. Recently the International Law Commission has devoted excellent work to the constitution of a permanent international criminal court. Hopefully, in the not too distant future we will see the establishment of such a court.

Deterring acts of gross inhumanity during hostilities is one of the greatest immediate challenges that international law faces. We know, from the horrifying evidence of recent times, that it can and does occur anywhere, regardless of context and continent. We know, too, that solemnly to declare such conduct as illegal does little to prevent it occurring. However, the trial of alleged perpetrators and the conviction and punishment of those found guilty, undertaken by an international tribunal and with full observance of due process, is calculated to have a significant deterring effect. Certainly a failure to prosecute would be a distinct encouragement to potential offenders.

So perhaps my strongest hope for the immediate future - not entirely unconnected, I suppose, with my position as a judge of these tribunals - is that they achieve their object and are ultimately succeeded by a permanent international criminal court.

Looking to the future

Might it not be useful, in anticipation of the need to employ mandatory sanctions in the future, to undertake an in-depth study with a view to enhancing their operation to ensure that they effectively impact upon those at whom they are aimed while not at the same time injuring others. Also important is the need to ensure full understanding and cooperation between the Security Council as the architect of sanction regimes and the member states who are called upon to implement them.

This point draws together what I have been trying to say here today. A major challenge facing international law on into the next century is the need to maintain and enhance its utility to states, particularly in preventive diplomacy. There may be relatively little need for new rules or new institutions. The infrastructure is largely there already. There is, however, need for more effective communication between existing international law institutions and their client states and for a commitment on the part of all to ensure that the rules, institutions, processes and practice of international law best meet our expectations and contribute positively to world peace.