Saturday, 7 September 2013

The 'World's Rules'

At the close of the G20 meeting, eleven states issued a declaration concerning Syria calling for  ‘a strong international response to this grave violation of the world’s rules and conscience that will send a clear message that this kind of atrocity can never be repeated’. They are Australia, Canada, France, Italy, Japan, Republic of Korea, Saudi Arabia, Spain, Turkey, the United Kingdom, and the United States.
The expression ‘world’s rules’, and the slightly longer formulation ‘world’s rules and conscience’, is intriguing. It seems to suggest international law. But why not then use a term that is familiar?
The term did not appear anywhere in the materials on the United Nations website. A search in Google Books turned up many references to ‘world’s rules’, although not in the context of international law. It seems the term is used mainly in religious writings.
Are the eleven States suggesting that there is some other normative source relevant to the Syria issue that is different from and independent of international law? Are they proposing the ‘world’s rules’ as a synonym for international law? Or are they suggesting the 'world's rules' as a source of international law that is distinct from the classic list provided in article 38 of the Statute of the International Court of Justice?
There are, to be sure, sources of international law that do not appear in article 38. Jus cogens (peremptory norms) would be one such source. The famous Martens clause of the Hague Conventions provides another: ‘the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. There is the reference to ‘elementary considerations of humanity’ by the International Court of Justice in the Corfu Channel Case. And to ‘moral law and to the spirit and aims of the United Nations’ in the Advisory Opinion on Reservations to the Genocide Convention by the International Court of Justice. Some will say that these are all concepts subsumed within customary international law, which is of course part of the list provided by article 38. But customary law is based upon the conduct of States and on expressions of their understanding of law. Concepts like 'considerations of humanity', 'moral law' and 'the laws of humanity' must exist autonomously, regardless of whether States comply with them.

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