Samit is an attorney in the United States holding Juris Doctorate and Master of Arts degrees. We have followed his work on several different humanitarian projects, including a mission in Israel and Palestine for developing a legal digest on War Crimes to present to the Constitutional Court in Sarajevo, Bosnia; and being part of a Guantanamo detainee’s legal team. We’ve sat and listened around coffee tables, picnic tables and hotpot tables to say, yea, we definitely appreciate learning international law – it certainly has bulked up our credibility in the face of public discussions on social and ecological issues.
– Lawrence, Co-Founding Member of Valhalla Movement
The reality seems almost preposterous today, but the world could have adopted solar power as its principal source of energy nearly 150 years ago. By the late 19th century, two industrial revolutions had helped drive coal and other carbon-based resources to the forefront of economic development. Though most of the world felt content with using coal to fuel growth, a small number of scientists recognized that eventually, this source of energy would run out. One of them, French inventor Augustin Mouchotis, nearly changed the world. Mouchotis is credited with being the inventor of the earliest solar powered engine. In 1878, Mouchotis took center stage at the Paris World Expo, where he demonstrated that solar energy could be used to power anything. He invigorated crowds by using the hot sun to distribute drinks cooled in a solar powered fridge. 150 years ago. The French government had been particularly interested in his research, and provided the funding for his work. Why? Unlike the United Kingdom, France did not produce enough coal to domestically power its rapid industrialization. Instead, France had to import nearly a third of its coal. Some French elites believed that if solar power could really power steam engines (it can), then France could have ended its dependence on foreign coal. Unfortunately, a fortuitous piece of international law helped change the course of history.
France and the United Kingdom were party to an international agreement called the Cobden–Chevalier Treaty, which promoted peace between the two nations through free trade. The treaty also helped make coal markedly cheaper in France by eliminating tariffs on imported coal, helping lead the government to conclude that solar power simply could not compete economically. Mouchotis’s funding was cut, and his research ended. Mouchotis, a prodigy of his time, was quickly forgotten by the annals of history. Mouchotis dreamed of a world powered directly by the sun, and there is no telling what his continued research could have yielded so many years ago.
I tell you Mouchotis’s story not to discuss the “what if” of solar power; of course, that ship has sailed (probably using coal). Rather, I want my fellow changemakers to know that international law can help you achieve your goals for a better tomorrow; neglecting it can sometimes prove disastrous. Have you ever noticed many of the world’s most important changemakers, including Mahatma Gandhi, Martin Luther King, Fidel Castro, and Nelson Mandela, are lawyers?
As an attorney specializing in international law, I often find myself in the frustrating position of having to prove that international law is relevant. Over the years, international law has managed to exasperate an extensive range of people – most lawyers refuse to call it law, changemakers fail to see its use, and states often openly disregard its canons. But don’t take my word for it- if you type “why international law is” in Google, the first three suggestions complete your sentence with “not true law”, “not important”, and “not law”. Given the foregoing, you may be wondering why I even bother to mount an apology for it. I want to address each of these myths with you – that it’s not law, that it’s not useful, and that it’s not respected – and share a few anecdotes that will hopefully convince you of just how useful international law is.
The Myth that International Law is not Law
In several respects, international law is a relatively primitive body of law, and isn’t analogous to its domestic counterpart. The most glaring distinction is that international law is not directly enforceable. That’s right. When you break the law in your home country, an executive body enforces that law. But when a state (to which international law generally applies) violates international law, there is no executive body to rein it in. This applies to all the bodies of international law you’ve probably heard of – human rights, environmental law, jus in bello(law applicable during war), and others.
Before giving this argument more attention than is due, I should note that this line of reasoning is entirely irrelevant because the law does not concern itself with enforcement. It concerns itself with legality. Law depends on society to enforce it – if we want enforcement, we should strive to create such an enforcement body. While there is no official means of enforcing international law internationally, methods that civil society uses – including boycotts, protests, riots, sit-ins, and other “coercive” methods of enforcement are still used with varying effectiveness. Moreover, states are required to “domesticate” international law by enforcing it within their borders. For example, under the U.S. Constitution, international treaties are equally as binding as laws passed by the U.S. Congress. I recently helped an individual get immigration status in the U.S. based solely on international U.S. obligations – that’s right, I went to court and told the judge that he could not send my client to his home country based on international law.
Since I am on the topic of enforcement, it’s also worth noting that almost every country in the world has substantially obeyed the rulings of the International Court of Justice (ICJ), the only international court to which every state is a member. In its 100 year history, there has been only one country on the planet that has failed to comply with the Court’s ruling: the United States of America.
The Myth that International Law Can’t Help Regular People Make a Difference
International law matters to changemakers. Take the environment, for example. Over the last few years, I’ve had the opportunity to work on some really great international human rights law projects around the world. One of them was a particularly sensitive matter in the Middle East. I was working in Israel & Palestine on issues related to forced transfers and deportations in the region, and shockingly, my work revolved almost exclusively around environmental issues. I’m not the first person to note this interdependence. According to the United Nations Environment Program (UNEP), the environment is “a pre-requisite for the enjoyment of human rights”, and “certain human rights, especially access to information, participation in decision-making, and access to justice in environmental matters” are essential to good environmental decision-making. Think about it: We can come up with wonderful solutions to save our planet, but if our brothers and sisters in Syria, Iraq, Nigeria, or elsewhere constantly have their right to life and security threatened, will they ever have the opportunity to really think about the environment? We can build a global community that is cognizant of how important our planet is, but if the majority of our global family members’ economic, social, and cultural freedoms are restricted, how will they ever contribute to or acknowledge our team? We can find alternatives to the destructive way we live, but if states sign a treaty that undermines our efforts, will we need to wait another 150 years before we can implement those alternatives?
The Myth That States Do Not Adhere to International Law
The idea that states do not adhere to international law is a myth. While there are, of course, incidences of non-compliance, the vast majority of states respect international law the vast majority of the time. Let’s look at a few examples.
States are particularly cognizant of respecting commercial international law and trade law since failing to do so can dramatically hurt their economy. If we want states to listen to our needs, we need to make sure commercial international law aligns with our interests too. Take, for example, imposing a carbon tax to account for “externalities”. We know that a carbon tax can fuel development in a sustainable way, as evidenced by British Columbia (a Canadian province)’s foiré in the introduction of a Carbon tax. Many governments, however, are reluctant to impose such a tax as it would hurt domestic competition vis-à-vis imports, and this argument is not unfounded. Isn’t the answer just to tax imports as well? The Guardian recently published an article noting that “a low or zero-carbon import policy is almost certain to violate World Trade Organization (WTO) law”. While we’re on the subject of the WTO, an international organization created under international law, note that the WTO annually provides 600,000,000,000.00$ (600 billion) in subsidies towards producing energy using fossil fuels, but only about one sixth of that on all renewable sources of energy combined.
The oldest body of modern international law is the the Law of the Seas. In September 2013, MY Arctic Sunrise, a ship owned and operated by Greenpeace, entered Russian Federation (Russia)’s Exclusive Economic Zone (EEZ), an area of economic sovereignty, to protest arctic drilling by Gazprom (a Russian oil company) at the Prirazlomnaya platform in the Barents Sea. On September 18, 2014, inflatable rafts carrying Greenpeace activists approached the platform. Two activists boarded the platform and were subsequently detained by Russian authorities. On September 19th, Russian authorities seized the ship, which remained in Russia’s EEZ, and detained its remaining crew. The crew and its ship were brought back to Russian soil and hit with a slew of charges, including piracy. The debacle garnered a furious reaction from the international community. Their defense of the activists was not based on Russian domestic law, but on international law. Greenpeace in particular released a statement noting that under international law, Russia had no authority to seize the ship and its crew, and charges of piracy could not be brought against them. The Netherlands, the ship’s flag state, duly filed a request for their release before the International Tribunal for the Law of the Seas. The Tribunal ordered Russia to release the crew of the ship. While the Russian government initially refused to return them on procedural grounds (related to its obligations under the Law of the Seas), the Russian Duma (its parliament) eventually granted them amnesty. The entire crew, along with the ship, was released.
When states or their agents (meaning government officials) do not respect international law, they worry about the consequences. There is a subset of international law called international criminal law that deals with the punishment of violators of grave international crimes (such as genocide, war crimes, or crimes against humanity). Violators of international law from Nazi Germany, Imperial Japan, the former Yugoslavia, Rwanda, and elsewhere have been punished under these laws. In 2002, an international court was formally established in the Hague, Netherlands to prosecute perpetrators of these crimes. Thirty-one days later, and under the backdrop of the impending Iraq War, the Republican-controlled United States Congress quietly passed the American Service-Members’ Protection Act (ASPA). Part of the act authorizes the U.S. president to invade the Netherlands (yes, the Netherlands) to “to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The act met with a generally flippant response by a confused international community, which later nicknamed the bill the “Hague Invasion Act” for its ridiculous suggestion that the United States would go to war with the Netherlands over a war criminal. However, over the course of the next decade, the United States repeatedly violated international law through a pot-pourri of war crimes and human rights abuses, culminating in the use of torture against detainees in American prisons around the globe. Many see the failure to prosecute American service-members for their crimes as a failure of international law. I see ASPA as a small victory for international law. Yes, the tide is currently in the U.S.’s favour, but international law in still in a nascent period. It took thirty years to bring Augusto Pinochet to justice for crimes he committed in Chile. The very fact that the U.S. passed ASPA demonstrates that government officials know that someday, the tide will turn against them too. It is our job to make sure that happens sooner rather than later.
No matter what your cause is, I implore you to consider how international law can help you achieve it. International law often has a moral feel to it, so a lot of the time, when something feels right, there is a good chance international law has you covered. There are a plethora of specialized courts, tribunals, and committees you can make your case to, and even if there isn’t, adding “and this is also a violation of international law” is a fantastic rallying cry to include with your message. When international law doesn’t apply to your cause, question why – and what can you do to make it law someday. Law and justice are difficult tools to work with, and I certainly don’t promise you easy access – the righteous must often work with a hand tied behind their back. In the end, however, we will always have the upper hand.
Samit is an attorney licensed to practice in the state of New York. He has authored several articles on international law, and recently published a short guide, designed to navigate changemakers through the nuances of international law, entitled “Layman’s International Law: Everything You Need to Know About the Law of Nations”. Layman’s Laws, a platform for lawyers around the world to publish accessible, easy-to-read content, is an initiative to make international and national law accessible to everyone.