Prescriptive or Permissive? A Quick Survey of International Law – Part I

The New Year brings the forgotten joy of writing to old friends, colleagues and teachers. As I was reveling in exchanging emails with my professor from the law school, who was my first teacher of International Law, he told me that this semester he is going to hold a brainstorming session with his students on whether International Law is Prescriptive or merely a bundle of permissive norms. I remembered that he had asked the same question from our batch too. So, first I became restless, for not knowing the answer right away, but then I remembered that it is not a question asking if I want fries with my burger (although I have difficulty in answering that too!). Then, I began to dissect the question, and I got stumped on the very first piece, What is International Law? huh!! Now saying that it is a body of rules governing the conduct of states… la di dah …. , it is not an inaccurate description but it’s an understatement. It just doesnot convey the sense of International Law today, it is everything, it is everywhere, like Matrix.

However, it is important not to fall and get drowned while peeping over this vast roaring sea of international norms that is present this day. Keeping the original question in the sight, I then began to think, that the most definitive answer to this question can be found by an extensive empirical research -: collect all the international, regional, multilateral treaties, agreements, and plot their provisions as prescriptive or permissive (understanding the meaning of the words in their usual sense), tabulate all the data, treat it with some statistical tools, and find out the answer for once and all. At least my professor’s next batch will be spared of the question. But, well, unfortunately for the kids, I am not that good at statistics.

Hence, when we are too lazy to learn any advanced statistics, we simply call the data size to be infinitive, and go for random sampling. However, the sample I propose is not that random. Let’s take the ‘major international normative regimes’, constituting of a) Sovereignty, b) Free Trade, c) Human Rights, d) Self Determination, e) Arms Trade and Disarmament, a selection proposed by Prof Alastair Ian Johnston of Princeton University, (International Security, 2003). Now if we may throw a quick glance on the present day rhetoric of all these norms.

a) Sovereignty – The days of unfettered sovereignty which came along with the unfettered territorial acquisition are over. It is just so unfair that, nowadays you can’t even take out your boat, find an island or two, kill the ‘savages’, and declare yourself to be the sovereign. Case in point – Russia’s continuing occupation of Southern Ossetia, and Crimea. Putin did everything Alexander the great would have done, but damn the international community that it won’t let him name these small pockets as Russia. Effectively or not, they will remain ‘belligerently occupied territory’ much to the Mr. Vladimir’s chagrin.

Even Uncle Sam has been accused of putting up the facade of Peace War, Iraq War, revolutions, etc., to keep occupying the resource rich territories. International Law has trimmed the corners of Sovereignty.

Remember the time when Hugo Grotius proclaimed all seas to be open to all? We had started from there, and today it is a wonderment that these days, with the limits and obstacles of far flung voyages vanished, vast swathes of land and sea have been declared ‘international, ‘common heritage of the mankind’, and are generally free for all. Arctic Ocean, upon which States have legitimate territorial claims, has an Arctic Council just to hold its international character in place. International Seabed Authority solely controls more land in the terms of area than UN can ever hope to. (Although UN doesnot really control any territory, it merely has some forlorn protectorates). An entire continent by the name of Antarctica is free for all, but belongs to none.

b) Free Trade – With GATT, WTO, and what not, my question, is the trade really free? If it is, as said to be free, why am I not already assembling laptops, putting a logo of a bitten apple, and selling them far and wide, ten bucks a piece? And then when my sales go down, I dump them all in Somalia, a buck a piece. I cannot do this unless I am street side hawker in a shady street in some B-grade Chinese town. You get me, trade is regulated.

c) Human Rights – Honestly, I never took much interest in Human Rights. But an occasional glance on some decision by European Court of Human Rights, tells me that the countries nowadays can barely imprison a person without getting in trouble with NGO. Reminds me of the time, when Ajmal Kasab, one of the terrorist captured during 2008 Mumbai terror attacks, was imprisoned in India, the news of his treatment in prison was more common than news of his trial. Infact, it was just last summer that I got to know that the UN Committee Against Torture holds its session every year to admonish the countries for not treating its prisoners right. Just last month the New York Times had a report on it grilling China.

d) Self Determination – Well, let’s agree that this one is more of a political question, and a question depending upon the preference of the global power elites. East Timor, Kosovo, got a lot of attention, South Sudan came in news but largely burned, and a very few know about the struggle for self determination in Western Sahara. Tibet gets much limelight because China on the opposite end of the spectrum. But the news is only occasional on the referendum voting happening in Catalonia region of Spain.

e) Arms Trade and Disarmament – Another topic, I don’t know much about. However, having general knowledge about non proliferation treaties, the ventures and adventures of IAEA, I can say this – if Monsieur Huig de Groot would write an equivalent Mare Liberum for all states to have equal rights to all sorts of arms they can have, the world will be a perilous place to live in.

Continued to Part 2

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