Q&A: International Law Matters

Q&A: International Law Matters

AUT law expert Myra Williamson explains Palestinian statehood, international law, enforcement, deep-sea mining, and the future of global governance.

Q: There is a huge focus on Palestinian statehood. What makes a state?

A state is defined by four characteristics, drawn from the Montevideo Convention of 1933. To be a state, an entity must have a population, a defined territory, an effective government, and the capacity to enter into relations with other states. It becomes more complicated in practice because if other states do not recognise you as a state, then you cannot really do very much. You have to satisfy the criteria, but you also need to be recognised by other states.

Q: Does it really matter if New Zealand recognises Palestinian statehood?

The answer really depends on your point of view. Some people would say it does not really matter whether New Zealand recognises Palestine or not. They would argue that it is simply a symbolic gesture and will not make any practical difference. Others would say it does matter because New Zealand carries a lot of weight and has a strong international reputation. We are a small state, but we have earned considerable respect for respecting international law and upholding the rule of law, meaning that all states should obey the same set of rules. New Zealand is one of the founding members of the United Nations. We were there from the very beginning. Other states look at us, consider our views, and often take account of the decisions we make. For that reason, I believe it does matter if New Zealand recognises Palestine as a state.

Q: What is the purpose of international law?

International law often only makes the news when there is a conflict, a state is behaving badly, or a country is accused of breaking international law. However, that is not really what international law is about. At its core, international law creates a framework that allows states to work together. It provides a common language through which states can interact and understand each other's expectations. Most of the time, international law goes unnoticed. People are often unaware that it is operating in the background. Every time a state enters into a trade agreement or reaches an agreement about how to use the oceans, Antarctica, or outer space, international law is involved. These arrangements are generally established through treaties.

At its simplest, international law is a framework that enables states to work together and interact with one another, most of the time peacefully.

Q: What happens if you break international law as an individual or as a country?

To answer that question, it is important to understand that international law originally developed over centuries to regulate interactions between states. Today, it also affects individuals in some circumstances, particularly when international criminal law is involved. What happens when international law is breached varies significantly depending on the situation. Sometimes nothing happens at all. In other instances, states choose to resolve matters through negotiation or mediation. They may also pursue more formal judicial processes such as arbitration or court proceedings. There are many international courts, but the two best known are the International Court of Justice (ICJ) and the International Criminal Court (ICC). The ICJ deals with disputes between states. The ICC deals with individuals, such as presidents or military commanders, who may have breached international humanitarian law.

Returning to the original question, what happens when a state or an individual breaks international law? As mentioned earlier, sometimes nothing happens at all. At the time of recording, one example is the United States carrying out killings in international waters off the coast of Venezuela. The US has referred to those targeted as drug terrorists or narco terrorists. In my view, this is clearly a breach of international law and is widely recognised as such by experts. Yet nothing has happened to the United States, largely because it is such a powerful state. So what happens when international law is breached? It really depends.

Q: How does international law differ from national law?

If by national law we mean domestic law, such as New Zealand law, there are significant differences between international law and domestic law. One major difference is how the law is made. In New Zealand, laws are created by Parliament. At the international level, there is no equivalent institution with the same law-making power. The United Nations General Assembly exists, but it can only pass resolutions that are generally considered a form of soft law and are not usually binding on states. The way law is made is therefore fundamentally different. More broadly, the distinction is also about why laws are obeyed. At the international level, states comply with legal obligations because they have consented to them. States consent to treaties and participate in creating customary international law. Consent is central to the system. That is very different from domestic law. Individuals do not get to choose whether they consent to laws. Enforcement is different as well. You cannot arrest a state, but you can arrest an individual within your jurisdiction. These are major differences, and some scholars even argue that international law is not really law at all because it lacks many of the characteristics commonly associated with domestic legal systems.

Q: Compared to other countries, how rigorously does New Zealand uphold international law?

That is actually quite a difficult question to answer because there is no accepted measurement for how well any country upholds international law. There are many global indices, such as corruption and happiness rankings, but there is no equivalent measure that ranks states according to their compliance with international law. What I would say is that New Zealand has a good reputation, although we are rarely considered the very best. Scandinavian countries such as Denmark and Finland are often viewed particularly favourably. Overall, I think New Zealand does a reasonably good job of upholding international law most of the time.

Q: What is the greatest threat to international law?

The greatest threat is powerful states choosing to ignore it. The unfortunate reality is that we are living in a period where some of the states that helped create the international system are also among those breaching its rules most frequently. We are entering a phase where might is increasingly treated as right, and some of the most powerful states are breaching international law and, in many cases, getting away with it.

Q: What is the big deal about deep-sea mining?

Deep-sea mining is a significant issue and can be divided into two parts: mining within a state's territorial waters and mining in international waters. One area attracting considerable attention is the Clarion-Clipperton Zone in the Pacific Ocean. This region does not belong to any individual state and is regarded as the common heritage of humankind. The most controversial aspect of seabed mining concerns these international waters. There are substantial mineral resources located on the seabed, and a number of states are eager to begin extracting them. To date, no mining has taken place in international waters, but several states, including some in the Pacific, would like to begin. The concern is that once mining begins, it may be difficult to limit. Another major concern is that we still know very little about the deep seabed environment. It is one of the least understood places on Earth. There are species and ecosystems that have not yet been properly studied. There are also concerns closer to home in New Zealand's territorial waters. A precautionary approach would suggest proceeding carefully until environmental impacts are better understood.

Q: What is the future of international law?

I think the future of international law depends partly on your outlook. I am an optimist, and I see some encouraging developments. One area that particularly excites me is universal jurisdiction, which allows states to prosecute individuals for crimes committed during conflicts, even when those crimes occurred elsewhere. Countries such as France, Germany, Belgium and the Netherlands have used universal jurisdiction to prosecute Syrian war criminals for crimes committed in Syria against Syrians. Another promising area is corporate responsibility. There is a growing movement towards holding corporations accountable under international law for the impacts of their actions. Those developments give me real hope for the future of international law. Ultimately, however, the future comes down to individuals. International law is shaped by the governments we elect, and governments, acting as states, create international law. The future is therefore in your hands. If you want international law to have a positive future, you need to get involved, stay informed and develop an understanding of how international law works.