April 26, 2018

VII Ibero-American Week of International Law

Ibero-America and the cause for International Justice

By H.E. Sergio Ugalde, Ambassador of Costa Rica to the Kingdom of the Netherlands

I wish to begin by emphasizing the importance of international law for the Ibero-American region. There are many contributions from Ibero-America that have significantly helped the systematization of international law, whether by jurisprudence, hermeneutics or positive codification.

Globally there is full awareness of these contributions and relevance of international law for the region, which relies overwhelmingly on the resolution of its disputes by mediation, arbitration or compulsory contentious jurisdiction; and by means of the considerable range of existing forums, from arbitral tribunals to courts in the field of the Law of the Sea, Human Rights and / or International Criminal Justice, and of course, the International Court of Justice.

Today I wish to briefly refer to the current situation of international justice and to offer you an idea of ​​where, in the end, it must evolve.

In spite of significant advances in the creation and promotion of forums focused on the various fields of international justice, we are still far from a true and effective harmonized system of international law and justice. This is basically due to the fragmentation that exists in the systematization, some contradictions in the positive codification, and also as a result of the competition that is generated among the international justice forums themselves. This fragmentation is also promoted by some States, which seek to have a tailor made justice, or, by thinking that fragmentation allows them greater flexibility in the interpretation of international law, thus accommodating it to the political needs of the moment, to fit a certain doctrine of international law, and, in some cases, to a vision of power.

There are many areas still in need of legislative progress, ranging from the responsibility of states to the establishment of a compulsory universal contentious jurisdiction. This reflection does not mean that the future of international justice is ominous, what it means is that there still plenty of work ahead.

Of course we also celebrate that international law and justice, as never before in the history of mankind, has made significant progress in the last 70 years. The fragmentation, of which I spoke earlier, is also testimony to a system under construction, despite its current limitations. As a well-known professor of international law pointed out “there is a system of international law, even if it is imperfect.” But in recognizing the progress achieved, we cannot lose sight of the importance of its evolution, which goes hand in hand with its harmonization and systematization.

In looking at the state of international relations today, even when it can be judged that multilateralism suffers from the erosion inflicted by a growing nationalism, I consider that erosion to be only temporary. Although there are many tasks pending, as you surely have been able to appreciate, there is one that I consider essential. In the systematization of international justice much more work is still pending concerning the task of homologation of practice and jurisprudence, so to ensure consistency. The outbreak of decisions by all kinds of courts and tribunals, national and international, makes certain aspects of international justice, and international law at large, inconsistent or conflicting, which in turn undermines legal certainty, and when there is no legal certainty, confidence in the justice system is lost.

This situation forces us to develop a true institutionalization of international justice, the last stop of a process of systematization, in other words, the establishment of a permanent and universal institutional architecture of international law, to ensure its consistency, and thereby strengthen legal security.

Whether this is a task of the United Nations, or whether States spontaneously are willing to organize themselves to create a supranational structure that achieves that goal, is something that is subject to debate. In fact, the United Nations International Law Commission is an example of the organizational effort in that regard, and its work has been remarkable. However, the task is still far from complete.

This is not a matter of creating bureaucracy by the bureaucracy itself. It is the establishment of an international authority tasked with the overall management of international justice. Someone will say that this international authority already exists, which is the International Court of Justice.

Although the ICJ fulfills the role of being the principal judicial organ of the United Nations, it does not fulfill the criterion of being an international authority for overall justice management. First, the ICJ does not possess compulsory universal jurisdiction. Second, its competence (other than its jurisdiction) is also restricted since, for example, it cannot resolve a multitude of disputes between States due to the existence of limitations ratione temporis and ratione personae. Nor does it have codification authority, although it has the power to interpret existing international law, be this codified or its general principles.

And while this latter characteristic makes the ICJ the most relevant judicial body worldwide, it lacks other indispensable functions of an authority for international justice, like the fact that its judicial sentences cannot be truly enforced by it. While judicial decisions must be observed in good faith, and courts cannot become on the ground law enforcers, there is a void because even good faith is subject to the interpretation and the temperature of international politics. Whilst the Charter of the United Nations gives a degree of attribution of law enforcement to the Security Council, this attribution, we know, is in fact a euphemism because, with very few exceptions, the Security Council is strictly a political body dominated by geopolitical interests, whose inability to act is manifest.

I conclude by observing that the idea of ​​creating a permanent institution of international justice, with compulsory universal jurisdiction, with no jurisdictional limit, capable of enforcing judicial decisions without political interference, and which also contributes to the systematization of international law, seems a fantasy. However, in defense of this idea, I note that only 25 years ago to think that humanity would have a permanent International Criminal Court, which would judge the worst crimes against humanity, with no opposable immunity of heads of State, and which recognized the central role of victims within the system, was nothing short of an eccentricity. And yet here we are, nearly 20 years since the adoption of the Rome Statute, with 124 States Parties, with more than 10 years of judicial work of the International Criminal Court, with a number of historical judgments already handed down, and presided by a remarkable Ibero-American judge: Ms. Silvia Fernández de Gurmendi.

In the excellent opportunity that we have today, I invite to debate, to criticize constructively, and to propose how to build a robust system of international law.

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About the author:

* Sergio Ugalde is the Ambassador of Costa Rica to the Kingdom of the Netherlands, has been his country’s advocate and co-agent before the International Court of Justice in six cases, has been invited to be speaker and lecturer on international law, including at the Hague Academy of International Law, and is currently the Vice-President of the Assembly of States Parties to the International Criminal Court. He is also the Chairman of the Hague Working Group of the Bureau of the International Criminal Court.

 

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