Speaker: Prof. Philippe Sands QC, Professor of Law and Director of the Centre for International Courts Tribunals at University College London and Author of "Lawless World: America and the Making and Breaking of Global Rules"
Chair: Dr Lim Chin Leng, Associate Professor-Law Faculty, National University of Singapore
Date: 7 June 2005,
This session centred on Prof. Sands’s new book, Lawless World: America and the Making and Breaking of Global Rules. In his introduction, Prof. Lim shared his understanding of Sands’ book, interpreting Sands to mean that the international legal order established since WWII has steadily eroded. What the US President Roosevelt and British Premier Winston Churchill sought to institute as foundations of the global framework –human rights, free trade, regard for basic standards of international behaviour –have been disregarded by these same countries today. This is evidenced by the US opposition to the International Criminal Court and the Kyoto Protocol. Such acts of the US and UKhave led many to view them as attempts to remake international law, creating a new international legal order.
Affirming Prof. Lim’s interpretation, Prof. Sands explained his new book as an exercise in trying to make international law accessible to the layman. The events of the recent past –9/11, Guantanamo Bay, Iraq war, and Abu Ghraib –have made what was largely seen as an intellectual, high-level subject, a topic relevant to people’s lives, newsworthy and regularly covered by the media. With so much focus on international law, it is crucial at this juncture therefore to analyse its growth over the past fifty years and in which direction it is going as international law provides the environment for political will to grow.
Mention was made of China –that although it is a dominant figure in international politics, it cannot be depended on to set global rules presently because of its pressing domestic agenda.
Prof. Sands then went on to explain the present Bush Administration’s way of engaging the international order as one of a la carte multilateralism, where the US picks what it likes and leaves out the international rules it chooses not to abide by. This is manifestly against the principles of the international legal order and how Roosevelt envisioned theUS’ role in the global order to be. There is now thus a bifurcation between good and bad international practice by theUS and Prof. Sands feels that there is an urgent need for the US to re-engage.
This “assault” on global norms did not begin with 9/11. It had already begun with the lack of international responsibility towards the atrocities in Congo and Uganda in 1998. Instances of US action breaching international law are many. The detention of terrorist suspects in Guantanamo Bay such that they are kept outside the jurisdiction of the US courts; the preference to call them “detainees” and “unlawful combatants” such that they cannot be afforded the protection of the long-established 1949 Geneva Conventions, the torture and abuses that are meted out by the US Army in Iraq and Guantanamo Bay all show the disregard for international law. In these acts, the UK is criticised for being complicit as the British government not only supported the 2003 Iraq war but have never criticised the American treatment of British detainees in Guantanamo Bay. Moreover, its silence towards many other US actions can be interpreted as an acquiescence which legitimates unlawful behaviour, which is in fact what has happened to create the “lawless” international arena today.
Prof. Sands then concluded with an invitation to examine the US National Defense Strategy (March 18, 2005) where theUS disturbingly proclaims itself as a “nation at war”.
The Danish Ambassador posed the first question, asking what will happen to the globalised world now with the international legal order in disarray, and what can be done with those who choose to breach international law, preferring unilateralism over international institutions.
Prof. Sands stated that institutions do not work precisely because of inadequate international action. However, he also challenged the idea that international institutions do not work. He cautions that the international order and international law are designed to respond to terrorist action; it cannot prevent or stop terrorism. In fact, the events of March 2003 showed that the two most powerful states –the US and UK –could not bribe the UNSC into declaring war onIraq on the issue of weapons of mass destruction (WMD). In the UK, the then Foreign Minister, Robin Cook, also resigned over the UK government’s support of the US position.
An American businessman then questioned the impact of the new global order on the trade law regime. The a la cartemultilateralism of the US applies also to international laws on trade and the environment, namely the WTO rules and the Kyoto Protocol. Countries like Japan and Canada which choose to abide by the Kyoto Protocol and cut down on carbon dioxide industrial emissions are penalised for their environmental consciousness, losing out on economic benefits which non-signatories like the US and Australia ironically enjoy. To this, Prof. Sands reiterates his point that there is no simple solution to the complex mechanics of international political action but that it will only be a matter of time that the US will realise the necessity of international law.
Another question dealt with humanitarian intervention, human rights and security –as to the conditions that permit regime change, and whether or not it is indeed lawful. Prof. Sands again stressed that the established bulwarks of international law are based on the upholding of the dignity of the human person and safeguarding human rights. Where humanity is in grave danger, whether it be egregious violations of human rights, genocide, or the imminent threat of WMD, it is legitimate under international law to implement regime change. But international law does not legitimate regime change as an end in itself. More importantly there is the need to take steps to counter threats to international peace and security according to intelligence gathered. What had happened with the 2003 US invasion ofIraq was that the imminent danger of WMD was not proved and the international community was largely against theUS’ position, preferring to extend the length of time for the weapons search.
As to the fear of further US trade protectionism with an inclination of changing trade and WTO rules, Prof. Sands observes that post-9/11, the US has been feeling very vulnerable. However, Prof. Sands is of the view that as long as the US and EU believe that free trade brings development, prosperity and well-being, there will be continued trade promotion.
In conclusion, Prof. Sands shared his optimism that the US breaches of international law under the Bush Administration are an aberration of the longstanding US tradition of abiding by international law, notwithstanding realpolitik.
Report by Tan Hsien Li
SIIA Associate Researcher