Role of International Law in contemporary diplomacy – Part II:

The challenge posed by NGOs

Text of the Romesh Jayasinghe Memorial Oration delivered by Dr Amrith Rohan Perera PC at Sri Lanka Foundation Institute, Colombo on May 30, 2012

The adoption of controversial resolutions within the Security Council, authorizing sanctions and paving the way for military action including for regime change, in different global situations, have brought to the forefront, difficult issues in the relationship between states and international organizations. These concerns have led to the International Law Commission (ILC), the principal norm creating body of the United Nations, to formulate Draft Articles on the Responsibility of International Organizations, to follow up on its work on state responsibility.

The role and responsibility of non-governmental organizations (NGOs) and the need for codes of conduct for these organizations is assuming equal importance with the increased role being performed by such entities, particularly in fields such as environmental protection, protection of human rights and the providing of disaster relief. The challenge is to ensure that humanitarian objectives are not diverted by extraneous considerations or agendas, while recognizing the useful role these entities could perform in difficult situations, such as in providing disaster relief, and accordingly, preserving their operational flexibility, to facilitate bona fide humanitarian activities.

Thus, in order to keep pace with these evolving conditions of international life, international law is called upon to deal with complex and varied relationships that have emerged at different layers in the contemporary global order; at the inner-state level; at the level of the state and the individual; and at the level of state and international organizations, as well as between such organizations.

Academic discipline

In this contemporary multi-layered framework, the primary task of the international lawyer and the diplomat is one of seeking and achieving a careful balance of contending interests and principles in an attempt to preserve and safeguard the essential interest of the state, on the one hand, while ensuring that the rights of the individual are not sacrificed.

International Law and diplomacy in the contemporary global order

In the contemporary global order, International Law is not merely an academic discipline. It has far reaching political implications for the international community of states in the real world of international politics. It would not be incorrect to surmise that International Law making is essentially a 'political activity'. While an international lawyer plays a vital role in that process, the role of the diplomat, also assumes a crucial position, given the underlying political considerations which are interwoven into that process.

For the success of a global initiative, whether to create a new regime to replace the old order, or in the evolving of new rules of international trade, the efforts of the international lawyer need to be backed up by effective diplomatic and political initiative, leadership and skills, in order to reach the desired goals. The multi-lateral law making process in particular, requires skilful negotiations directed towards reaching mutual accommodation, whilst safeguarding fundamental national positions. It would be an unrealistic expectation that the final outcome of a process should reflect the maximalist position that a state would have assumed at the beginning of the process, yet the outcome could be one which addresses the basic concerns and interests of a given state, while accommodating the interests of others. Such an outcome would not be beyond realisation, if there is recourse to skilful diplomacy with a mix of political realism.

With regard to the challenges inherent in the multi-lateral law-making process, it has been pertinently observed that.

“Deliberation is an essential lubricant of any law-making process, because it facilitates discussion, negotiation, compromise, persuasion, influence, and participation. It is what allows participants a voice, whether or not they have a vote”.

Lessons from the past

This statement encapsulates the challenge confronting contemporary multi-lateral diplomacy. It underlines the need to recognise that the milieu of multilateral negotiations require an acknowledgement of the existence of a multitude of concerns and interests and the success of diplomacy will depend on finding that middle ground, that fine balance, which would ensure that one's fundamental interests are secured, whilst those of other participants in the multilateral process are also taken into account and accommodated and are not shut out. What is required is a calibrated and nuanced approach, without sacrificing one set of interests for another.

In dealing with challenges of the present and of the future, it would not be out of place to take a brief look back and draw some lessons from the past. The 1960s and the 1970s which ushered in an expanded international community of states consequent to the decolonisation process, is sometimes described as the 'golden age of multi-lateral diplomacy', where the developing world gave effective political and diplomatic leadership in setting out a new 'law making agenda' and made a decisive contribution to vital political and economic issues of the day.

The agenda was wide and varied and included issues such as Permanent Sovereignty over Natural Resources, adoption of a New International Economic Order (NIEO) and a New Legal Order for the Ocean to harness ocean resources for the common benefit of all mankind.

It has been observed that the negotiating process at the Third United Nations Conference on the Law of the Sea best illustrates fact that power and influence are not synonymous in the real world of multi-lateral diplomacy and underlines the fact that the United Nations system has empowered the so-called 'weaker states' in a way that would not have been possible previously. To give an important example, the Law of the Sea negotiating process which recognised the 'consensus principle' as the cornerstone of negotiations, in that no issue would be put to a vote, unless and until all efforts at reaching a consensus had been exhausted (the then innovative 'gentlemen's agreement'), enabled the developing world to maximize economic advantages whilst recognising the strategic and military interests of the major users of the oceans, the 'Major Maritime Powers'. Thus a new concept of an Exclusive Economic Zone (EEZ) giving coastal states resource jurisdiction over an area of 200 nautical miles from the coast emerged, the quid pro quo being the recognition of the freedom of navigation of all states in these waters.

This was a compromise par excellence, accepting sovereign rights over resources, in return for the unhindered rights of navigation which addressed the security concerns of the major maritime powers. It was essentially a compromise that was realistic and politically feasible. Thus, through a combination of effective diplomacy intermingled with political realism, it was possible to secure innovative legal concepts and principles, having great potential to the interests of developing countries, a process in which Sri Lanka played a significant role.

Current challenges

Varied concerns have been raised whether, in the aftermath of the 'golden age' of multi-lateral diplomacy of the 1960s and 70s and with end of the Cold War, the developing world has lost its leverage and diplomatic clout to make an impact on the contemporary International Law making process.

The growing role and the initiatives of the Security Council, in what can best be described as 'crisis-driven law making' as manifested in the establishment of ad-hoc criminal tribunals, bypassing the established procedures for law making in the General Assembly' the increasing action being resorted to under Chapter VII of the United Nations Charter and the plethora of Resolutions being adopted, imposing wide and varied sanctions on states, as well as the emergence and the influence of the World Trade Organisation (WTO) in the field of international trade, where the developing countries lack the requisite political leverage over the major trading economies to be able to promote their own agenda, are all cited as major factors which have led to the diminishing political clout of the developing world.

To be continued