Stephen Vasciannie
THE MEETING is quite frustrating. The participants are concerned about the implications on a set of international law rules on their work. They do not quite see a way out, for the rules are clear, and contrary to their economic interests. Then, one academic, a senior type, suggests that international law is not law, so, as everyone knows, the rules can be ignored.
This type of reasoning is all too common, even among persons who should know better. International law is binding on states, and so, if an international obligation exists on a particular point, it should be respected.
Of course, because international mechanisms on enforcement are still rudimentary, and because the law-making mechanisms are not entirely in line with domestic approaches, there is a tendency to regard international law as illusory at best, and prejudicial to developing countries at worst. These conclusions should be avoided.
The episode in the meeting has prompted me -- again -- to consider the place of international law in our lives. This time I wish to look at it from the point of view of specific areas of international law. In radio discussions and so on, we tend not to recognise some of these areas as parts of international law; this, I believe, is all the more reason for us to examine them in light of their international law context.
QUESTION OF HUMAN RIGHTS
Consider, to begin, the question of human rights. Within Jamaica, there is, thankfully, a vibrant group of persons who dedicate themselves to ensuring that human rights are respected. We should recall in this context that many human rights have their origins in, or are reinforced by, rules of international law. To take one example, although many may believe that prison conditions should, by definition, be atrocious, international law insists that no person should be subject to cruel, inhuman or degrading punishment or treatment.
Thus, governments throughout the world are enjoined to improve prison conditions when these conditions fall below appropriate standards. To be sure, freedom from cruel, inhuman or degrading punishment or treatment is often honoured more in breach than observation in many countries. International law, however, provides the legal certainty that these countries are in breach, and places them on the defensive.
Some persons, recognising the potent moral and legal force of international law, are keen to identify various desirable things as 'rights'. The idea is that once you classify the item as a right, it is to be given effective support by the State. So, for example, many are the references to the right to food, the right to work, and the right to health in the literature of international law. The lawyer, however, must assess whether these desirable things are rights, and sometimes, regrettably, (s)he will conclude that they are not. The law is not always able to deliver desirable results.
Consider, the question of trade. Within the Caribbean, there is a strong protectionist tradition in trade matters. This protectionist tradition has now had to contend with the forces of free trade, and arguments from the powerful in defence of free trade. In this context, we have all heard that Caribbean countries should disregard foreign impositions.
DISCOURSE ON FREE TRADE
Unfortunately, the discourse on free trade tends not to get far in the region, because some people feel it is sufficient to say that the United States is inconsistent in its free trade advocacy, full stop. The matter needs to move to the technical, legal level, even as some present the political case for the protectionism we seek.
International law has also been helpful in our lives by establishing clear rules on a wide variety of controversial issues. Today, various treaties capture international consensus on the need to protect the environment; and the Law of the Sea Convention sets out a comprehensive scheme on navigation and the pursuit of resources, a scheme that is binding vis-a-vis more than 100 States. Each time a foreign ship comes into Kingston harbour, or a foreign airplane lands in Montego Bay, international law is affecting our lives.
Finally, we should always remember that international law is more likely to preserve the interests of small countries than the law of the jungle. Without international law, small countries will be obliged to accept the will of the powerful, without argument. With international law, at least there is a chance that the powerful will have cause to pause. In some cases, the strength of national self-interest will push the powerful to disregard the law; but, if anything, that should encourage small countries to support international law, so that such instances are kept to a minimum. We have no business suggesting that international law is not law.
Stephen Vasciannie is a professor at the University of the West Indies, Mona campus and consultant to the Attorney-General's office.
