Role of International Law in contemporary diplomacy - Part III:

Special skills needed of states in facing challenges

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

While these are certainly significant factors which have a major impact on the current political and law-making agenda, it would nevertheless be an over-simplification to conclude from them, that the major powers have the decisive say in dictating the contemporary international agenda.

It is an undeniable fact that the momentum that was generated towards the establishment of an International Criminal Court by adopting the Rome Statute, in 1998, a decisive landmark in postwar legal developments, could not be derailed, despite the objections of the major power in the post Cold War order. The same could be said with regard to developments relating to the environment, ultimately leading to the adoption of a Framework Convention on Climate Change, though of course, critical issues still remain on the Environmental Agenda.

It must also not be forgotten that, through the consummate efforts of the developing states, backed up by an effective campaign by the non-governmental organisations, an OECD initiative to frame a Multi-lateral Agreement on Investment (MIA) was thwarted, as representing a rigid 'legal straight-jackert', heavily tilted towards the protection of investors, at the expense of the flexibility that should be vested in sales to legislate in the public interest. What has since emerged, is a network of Bi-lateral Investment Promotion and Protection Treaties (BITs), seeking to maintain a far equilibrium between the protection of rights of investors as well as the inherent rights of host states to exercise regulatory powers in the larger public interest.

The international agenda continues to present complex and challenging issues which call for continuing vigilance and diplomatic and legal skills on the part of state representatives. Occupying a position of prime importance among them, are issues that vitally affect the Sovereignty of States and State Officials, long regarded as a fundamental Principles of International Law, on which the current international legal order is based.

Recent jurisprudence of the International Court of Justice (ICJ), on going discussions and debates in the International Law Commission on the topic of 'Immunity of State Officials from Foreign Criminal Jurisdiction' and the increasing tendency on the part of domestic courts of foreign states, to assert jurisdiction over high level state officials of third states, have collectivity brought into sharp focus, certain tensions that have emerged among diverse and contending principles.

International Criminal Court

The on-going debates on these issues, it is said, revolve around 'two major values protected by International Law', namely the Immunity of State Officials from jurisdiction of foreign courts, an integral aspect of sovereign equality of states and an essential prerequisite to preserve the stability of international relations, and the other value being the obligation to avoid impunity, by granting immunity across the board, in situations where grave crimes, described as crimes 'which shock the conscience of mankind' are alleged to have been committed by persons enjoying immunity.

These values call for a careful assessment of the scope of immunity, the range of officials, who by virtues of their functions and as representing the state, should enjoy absolute immunity and the delicate question of possible exceptions to immunity in respect of a category of crimes referred to as 'grave crimes' under International Law.

While these difficult questions are debated and grappled with, there is a continuing need for representatives of developing states, to be engaged with the law-making process. Today the much heralded International Criminal Court is not free from allegations of an anti-African bias. In order to make an impact on this sensitive norm creating process, the diplomat and the lawyer must be conscious of the fact that one is entering an uncertain terrain.

It is an area of the law which is in evolution. In delivering a recent Judgement in February this year, in the Jurisdictional Immunities of States Case, upholding the immunity of Germany form the jurisdiction of Italian courts in respect of wrongful acts committed during the Second World War, the International Court of Justice was nevertheless, careful to caution that “given that the court's task is to apply the existing law, nothing in the court's judgement today prevents the continuing evolution of the law on state immunity. In the past century the law on state immunity has evolved considerably in a manner that has significantly circumscribed the circumstances in which a state is entitled to immunity. It is possible that further exceptions to state immunity will continue to develop in the future. The court's judgement applies the law as it exists today.”

What the statement underlines in the fact that the International Law making process in a state of evolution. Classical concepts perceived as well settled and immutable, are coming under increasing stress and strain, as new norms underlining the relationship between the state and the individual contend with established principles, as they struggle to find expression through state practice. These developments are pushing back the frontiers of established legal concepts such as absolute state sovereignty, on which the traditional international legal order is based. In this scenario, it is important that those engaged in the conduct of intentional relations and in the practice of International Law, recognise the evolving nature of the law, appreciating the inextricable linkage and the subtle interplay between emerging norms, and the underlying political factors.

Political adversaries

In this complex unfolding scenario, what is the role and function of the international lawyer and diplomat? I would say it lies in the search for a shared surface, with an understanding of the rationale and underlying values of the contending norms and principles. This idea of reaching a 'shared surface' is effectively captured in an Essay by the eminent Finnish Jurist, Martti Koskenniemi, Global Professor of International Law, New York University Law School and a former Member of the International Law Commission, entitled 'What is International Law For?'.

“... It is Intentional Law's formalism that brings political antagonists together, as they invoke contrasting instrumental understandings of its rules and institutions.

In the absence of agreement over or knowledge of the 'true' objectives of political community that is to say in an agnostic world the pure form of International Law provides the shared surface the only such surface on which political adversaries recognise each other as such and pursue their adversity in terms of something shared, instead of seeking to attain full exclusion outlawry of the other. Its value and its misery, lie in its being the fragile surface of political community among social agents - states, other communities, individuals, who disagree about social purposes, but who do this within a structure, that invites them to argue in terms of an assumed universality.”

This statement encapsulates the core value and role of International Law in contemporary diplomacy.

The international lawyer and diplomat must collectively engage in that task of reaching that shared surface, eschewing the temptation of drowning out of the voice of the 'adversary', but rather, explore every avenue pointing towards middle ground.

Such accommodation can be reached through rational balanced legal and political reasoning and arguments, which while preserving one's vital interests, keeps open the possibility of meeting the concerns of the other. In the long term, such a calibrated approach is the best guarantor of a state's own national interests. Above all, what must be eschewed is the temptation to adopt a 'zero-sum approach' in the milieu of international negotiations.

Romesh Jayasinghe's career in the Foreign Service was reflective of a constant seeking of balance and harmony on a multitude of complex issues which I adverted to at the beginning of this Oration. It was a continuing and alas, an unfinished search for that shared surface for the effective conduct of diplomacy, in an increasingly antagonistic world. This is the rich legacy that Romesh's life has left behind for those that are to follow the difficult, yet challenging path of conducting diplomacy in current times.

Concluded