The question of whether international institutions and legal doctrines up to the challenges of preventing and punishing international crimes and protecting the world environment in the 21st century is a complicated, two-part question. In preventing and punishing international crimes, the international community has had some success. One of the reasons for this success is the fact that such success is in the immediate interests of nation-states. On the other hand, the international community has less short-term interest in protecting the world environment and, thus, has had less success.
The prevention and prosecution of international crimes is limited by the legal status of the various international entities. Perhaps the two biggest issues are the sovereignty of nation-states and the lack of status of international companies (MNCs). Since MNCs do not have international legal status, the preventing and punishment of their crimes is relegated to individual nation-states and their applicable Municipal Law. As a result, the success or failure of international law (IL) hinges on its applicableness to nation-states and the third entity, the individual.
The applicableness of IL to individuals was succinctly expounded by Justice Robert Jackson who said that “crimes are committed by people, not abstract entities” (Ku, 161). Jackson’s comments came at the Nuremburg Trials which are considered a landmark in the punishment of international crime. This decision rendered individuals to be subjects of IL and not just objects. This determination was upheld in The Paquete Habana and The Lola (1900) and Filártiga v. Peña-Irala, (2d Cir. 1980), and most recently in Kadic v. Karadzic (2d Cir. 1995) and Ungar v. PLO (1st Cir. 2004). In these cases, the US Courts allowed individuals to seek remedy in domestic courts using concepts from IL.
Individuals, as well as nation-states, have also been punished via ad hoc criminal tribunals, such as the UN War Crimes Tribunals for Yugoslavia (ICTY) and Rwanda (and the new ICT for Cambodia). The problem with punishing nation-states and their leaders are the legal hurdles of nation-state sovereignty and sovereign-immunity. In the trial of Slobanon Milosevic, the ICTY set new precedents for both concepts: the international body indicted a sitting head-of-state and Milosevic was charged with a crime over the reservations of Yugoslavia’s agreement to the UN Convention on the Prevention and Prosecution of the Crime of Genocide (CPPCG) (UNHCHR).
To prosecute nation-states, such as the US in Nicaragua v. USA, and individuals, such as Milosevic, it is necessary to codify what the law actually is. The Kellogg-Briand Pact, Geneva Conventions/Accords, UN Treaty, and CPPCG are all key steps in the process of defining IL. The violators of these norms can then be more easily prosecuted in the ICJ, regional courts (such as European Court of Human Rights’ decision in Golder v. U.K), ad hoc tribunals, or International Criminal Court (ICC). One of the other key components in IL was the adoption of the UN Declaration of Human Rights in 1948. This document was unanimously passed (Five Soviet states, Saudi Arabia and South Africa abstained). The universal civil, political, economic, social and cultural rights are (Slomanson, 540):
• right to life, liberty and security of the person;
• the right to leave and enter one’s own country
• freedom from slavery and torture
• freedom from discrimination, arbitrary arrest and interferences with privacy
• right to vote
• freedom of thought, peaceful assembly, religion, and marriage.
• the right to own property
• the right to work
• the right to maintain an adequate standard of living and health
• the right to an education
In regards to the protection of these rights, Dinah Shelton argues that there is an increasing opportunity and need. She points out that the “illegal drug trade, arms trafficking, money laundering, and traffic in persons are all facilitated by the same technological advances and open markets that assist in human rights” development. (Ku, 339). For Shelton an avenue to punish international crime is to highlight state responsibility violating non-state actors. Shelton also articulates it is imperative to strengthen ‘weak states’ to “enable them to protect human rights while at the same time imposing increased international obligations on non-state actors through multilateral mechanisms (Ku, 356). The structural problem, though, seems to be a lack of balance. Do international bodies serve the hegemonic powers (the Permanent Five) or the entire world community (Slomanson, 473)? There must be equal application of the law. Furthermore, these penalties for violators must be uniformly enforced, yet it does not always happen. Hegemonic powers must reinforce the legitimacy of world/regional bodies, even if it is not always in their short-term interest. Ralph Zacklin discusses the possibilities and constraints of punishing violators of IL in a post-Kosovo international system. Specifically, Zachlin looks at when force may be used to punish violators. He calls for the establishment of a ‘norm of humanitarian intervention.’ That is, there must be universal application and an establish parameter of when military force is acceptable must be outlined. His suggestion is that: 1) preventative measures must be exhausted 2) the nation-state in question must have demonstrated an inability or unwillingness to uphold the law of the state 3) the primary role of the UNSC must be recognized by all 4) the violations of international law must be massive and systematic 5) the military action must be collective or collectively legitimized and 6) there must be clear limits on the use of force (Ku, 378-380).
For all of these new customary international laws (CILs) and the success of the ad hoc tribunals, the world still seems weak at what Harold Kearsley calls “‘institution-building’ and ‘implementation’ stages” of preventing and punishing international crimes (Kearsley). Human Rights violators, like Edi Amin and Pol Pot, have escaped punishment and yet there is promise that Augusto Pinochet and some members of Kymer Rouge might yet still have their day in court.
The question of whether the international institutions and legal doctrines are up to the challenges of protecting the world environment in the 21st century is sadly a separate story. As the readings point out, there has always been pollution, but the rate of pollution has increased in the past century. The most serious incidents were the radioactive fallout from Hiroshima and Nagasaki, sixty years of atomic testing, the Union-Carbide Incident, Chernobyl, Kuwait Oil Fires of 1991, the Norwegian Sulfuric Acid Spill and the Exxon Valdez Incident (Slomanson, 586). As dangerous as these incidents are, though, the point is that gradual threats are the biggest dangers. These incremental attacks of the environment include ozone depletion, climate change, deforestation, and food production.
Ironically, the international community has less short-term interest in protecting the world environment because, among other reasons, it is a long-term problem. In addition, the nature of international environmental law is much different than other IL. Most environmental law is based on declaration of intent treaties and, thus, has less bindingness. The eight main documents of international environments law are: the Stockholm Declaration (1972); UN Conference on the Law of the Sea (1982); Rio Conference (1992); UN Cairo Population Conference (1994); UN Conference on Human Settlement Istanbul Declaration and Habitat Agenda (1996); Convention on Biological Diversity; Convention on Climate Change; and the ill-fated Kyoto Protocol (1997). Since these documents are not self-executing treaties, there is little way to punish violators, whether they are signatories or not.
Another problem with international environmental law is jurisdiction. While a key component of international environmental law is “state responsibility for transboundary harm,” not everyone accepts this concept (Ku, 385). There are three primary areas of concern that lie outside of conventional jurisdiction: Antarctica, the Moon, Outer Space and the Oceans. The Antarctic Treaty of 1959 is an agreement signed by eleven nation-states and later accepted by another twenty-six nations (Bobo). The problem is that there, according to the UN, there are 192 nation-states. The treaty is not binding on the non-signers and furthermore Australia, Chile and Argentina all claim parts of Antarctica that are supposedly covered by the Treaty of 1959.
The Moon and Outer Space are governed by two treaties: The Moon Treaty (1979) and The Outer Space Treaty (1967). The idea of the Moon Agreement, as it’s also known is to give the international community jurisdiction of the Moon, but none of the actual space-faring nations (US, Russia, and now China) have signed or ratified the treaty. Thus its applicableness is questionable. Recently, US President George Bush has called for the construction of a Moon Base to be used to mine the Moon to supply a subsequent expedition to Mars (CNN). As the US has not signed the treaty, there is no leverage against US destruction of the Moon’s environment. The Outer Space Treaty, which has nearly been universally accepted, has a few more teeth; its Article VI of the treaty requires signatories also accept responsibility for non-governmental organizations that might mount space missions.
The final, and perhaps most contentious issue of jurisdiction, concerns the world’s oceans. The International Law of the Sea (LOS) (1982) and the also pose a problem for IL. International waters are considered to be the waters not within three miles of a nation-state’s coastline. According to historical CIL, the seas were open to everyone and belonged to no one. Both the Outer Space Treaty and the new LOS cite res communis principle, which hold the subject is the common heritage of all mankind. LOS includes several parts, including defining territorial waters, mining exploration, and the protection of marine environment. Unfortunately, while the other four veto members of the UN Security Council have ratified the treaty, the US has not (UN). How strong is a treaty if the world’s superpower is not a signer? (The same might be said of the ICC.) Furthermore, in 1993, “Russia’s head environmental advisor revealed that the former Soviet Union had clandestinely dumped vast amounts of waste at sea during the previous thirty years” (Slomanson, 586). While this was not done after Russian ratification, it was done during the negotiations and after the treaty was written. It is a classic example of breaking the spirit of the law, but not the letter of the law. If powerful nation-states (like the US and Russia) circumvent IL, then what should they expect from other countries?
In Nauru v. Austrailia (1993), Australia settled a case which accused the country of destroying Nauru’s environment. While this was seen as a positive sign for the development of environmental law, a later case, Hungary v. Slovakia (1997), decided that environmental concerns alone are not enough to supersede treaty obligations. On the other hand, Slovakia was able to receive compensation for environmental damages it incurred as a result of Hungary’s renunciation of the treaty.
In conclusion, there is no muscle to international environmental law. The treaties are merely declarations of intents and individual nation-states can sign and disavow at will (i.e., the US and the Kyoto Agreement). Nation-states, who are always competing with other nation-states too often take the Ease in which to blame others or take the stance, why should we do it if Country X and Country Y aren’t doing it?
The future of international institutions and their ability to prevent and punish international crimes and protecting the world environment is questionable. The international community must learn from its success in dealing with human rights and apply those lessons to environmental law. At the same time, the failures of human rights protection and the near absence of meaningful and binding environmental law must be rectified. Some of these issues deal with structural changes with the UN and others are a result of treaty-making policy that relegates environmental law to the second class status of declarations of intent. As Dan Tarlock states, “integration is necessary and inevitable because the ultimate objective of both international and domestic environmental law” is to move away from state-sovereignty and move to a more international consensus of ‘stewardship sovereignty’” (Ku, 392). Codify the law, identify the violators and multilaterally punish them no matter who the offending nation-states are.
Bobo Jack. (n.d.) Antarctica Treaty Papers: A Brief History of the Antarctica Treaty System. Retrieved from http://users.erols.com/jackbobo/History.htm on 8 May 2006.
Ceglowski, Maciej. (March 7, 2006) Ruling Antarctica. Retrieved from http://www.idlewords.com/2006/03/ruling_antarctica.htm on 8 May 2006.
CIA. (May 2, 2006) Antarctica. Retrieved from http://www.cia.gov/cia/publications/factbook/geos/ay.html on 8 May 2006.
Kearsley, Harold. (n.d.) Outline for Week 8: Human Rights. Retrieved from http://norwichwebct.embanet.com/SCRIPT/20054545244_GD520B/scripts/serve_home on 8 May 8, 2006.
Ku, Charlotte and Paul F. Diehl. (2003). International Law: Classic and Contemporary Readings. Boulder (CO): Lynne Rienner.
O’Brien, Mile and John King. (January 15, 2004) Bush Unveils Vision for Moon and Beyond. Retrieved from http://www.cnn.com/2004/TECH/space/01/14/bush.space/ on 8 May 2006.
Slomanson, William R. (2003) Fundamental Perspectives on International Law. Belmont (CA): Wadsworth.
UN. (April 28, 2006) Oceans and the Law of the Sea. Retrieved from http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm on 8 May 8, 2006.
UNHCHR. (n.d.) Genocide Convention Status Report. Retrieved from http://www.unhchr.ch/html/menu3/b/treaty1gen.htm on 8 May 2006