Legal Committee Overlapping Jurisdiction of International Law - IDIA
Rutgers Model United Nations 1 Introduction International law permeates the lives of people across the world. In a world where goods are constantly shipped across borders and over oceans, where wars or upheaval in one corner of the earth can have resounding effects, and cognizance of the issues of genocide and human rights, the rule of a system of international law is all but inevitable. Even in the midst of the turmoil of the Second World War, thinkers and scholars still saw a pervasion of a common rule of law. In 1941, Sir Hersch Lauterpacht summed up the tenets that laid at the core of international law: The disunity of the modern world is a fact; but so, in a truer sense, is its unity. The essential and manifold solidarity, coupled with the necessity of securing the rule of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible than the illusions of the sentimentalist or the hypocrisy of those satisfied with the existing status quo. 1 Beginning in 1999, Stephen M. Schwebel and Gilbert Guillaume, judges of the International Criminal Court, gave a series of addresses to the United Nations General Assembly and its Sixth (Legal) Committee. Prominent among the issues that they raised was a potential threat to the basis and principles of international law. Fears of this looming threat, however, were not fueled by trends towards lawlessness and upheaval throughout the world. Rather, the opposite tendency gave these officials, along with many scholars in the field of international law, a cause for concern. Rather than undergoing a period of decay, international law was flourishing, highlighted by the development of new bodies to legislate, control, and enforce laws among states. The potential for competition among regimes of international law grows proportionately to the creation of these international bodies. The existence of multiple sources of law can foment confusion and uncertainty that taint the overall relevance and force of international law. International Criminal Court: The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court. 1 Hersch Lauterpacht, The Reality of the Law of Nations, in E. Lauterpacht (Ed.), International Law, Being the Collected Papers of Sir Hersch Lauterpacht, Vol. 2, 26 (Cambridge University Press, 1970–1978).
Rutgers Model United Nations 2 These judges were pleased with the burgeoning influx of international tribunals and other legal bodies, lauding them as marks of the expanding scope of an international rule of law. At the same time, however, they cautioned that these positive effects could be readily negated by the conflict and discord that the mere existence of these new bodies fosters. Instead of a relatively monolithic form of international law, the definition and interpretation of laws was becoming increasingly dependent on which specific regime of law was consulted. Offering instances of overlapping jurisprudence and irreconcilable scenarios, the judges stressed the gravity of the problem of an expanding number of specific regimes creating law that were deemed equal to, if not taking priority over, the long-regarded norms and traditions of international law. Speaking specifically about the extension of courts of law, Judge Guillaume summarized with brevity the matter at hand to the General Assembly. “The proliferation of international courts may jeopardize the unity of international law and, as a consequence, its role in inter-State relations.” 2 In 2002, the International Law Commission (ILC), a group chartered by the United Nations General Assembly to codify and promote international law, began a rigorous study of the issue of fragmentation. The ILC had played a significant role in championing and developing important measures in the field of international law, such as the Vienna Convention on the Law of Treaties. Over the span of five years, the ILC dedicated itself to engaging in an intense study of the subject, culminating in the delivery of a report and set of recommendations to the General Assembly. The Commission considered the numerous theoretical concepts that pervade international law and offer a number potential ways to maximize the positive effects while minimizing the drawbacks and threats posed by overlapping. By its very nature, international law is fragmentary and disunited. When considering the vast number of states that are involved in crafting and enforcing law, it is difficult to imagine a single monolithic institution defining law on a global scale. The 2 Speech by H.E. Judge Gilbert Guillaume, President of the International Court of Justice, to the General Assembly of the United Nations, 30 October 2001, supra note 2.