Developing A Normative Framework
Upon return to The Hague, I was nervous that I wouldn’t be privy to the same types of paradigm shifts that were typical of the first. Yet, I have been. Through the weeklong Mount Pleasant class and the few days we’ve been in The Hague this far, I’ve come to deepen my understanding for a myriad of ideas, institutions and concepts. One of these ideas is that international law is not static. It expands as our understanding of natural law, morality and jus cogens develops with history.
According to William R. Nifong,
“there is a natural order within the universe that it is possible to ascertain the existence and nature of this order…and that human laws should and do flow”.
International law, in many ways, is founded on these principles of natural law and morality. As discussed, in my previous post on the “necessity of discussion”, our understanding of natural law progresses through discourse. Whether or not one might agree with the blurry lines between law and morality, does not negate the fact that international law does indeed find its roots in the need for developing humanity with universal principles. We must also acknowledge that international law is changing based on newly discovered facets of natural law. One time period, in which the normative framework of international law experienced considerable growth after particularly after World War Two when humanity was shocked by war.
The first International Criminal Tribunal was the Nuremberg Trials, in which war criminals on the side of Nazi Germany were prosecuted for their atrocities. This led to future international criminal tribunals being used as a way of procuring justice during and after conflicts. These tribunals include the temporary International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and many more. Eventually the idea that no one—regardless of status and power—should be able to commit horrific crimes with out repercussions led to the formation of the permanent International Criminal Court (ICC). “Crimes against humanity” were first prosecuted in the Nuremberg Trials. They was defined in the Nuremberg Principles (a document of international law derived from the Nuremberg Trials) as
“murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.”
Although, “Genocide” is a commonly understood term now, it was inexistent until after World War Two. However, due to the systematic and brutal murder of about six million people of Jewish descent, the human consciousness collectively rose up to declare that such acts targeting a racial group should be prosecutable. Soon after, the horrors of the Holocaust eventually led to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) on December 9, 1948.
The United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) the next day with “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”. The document declared that there is a natural order, a moral basis for the expected rights of every human. The UDHR has become one of the key resolutions in international law, confirming that there is something meaningful about humankind that needs to be preserved. This was vital after it was nearly decimated in the brutality of World War One and World War Two. When the world needed the essence of humanity, the international community developed the UDHR, a document declaring what should have already been known.
Considering at these examples, I can see how the normative framework of international law is constantly changing as natural law is explored. As the international community continues to tackle issues that arise, such as the crime of aggression, nuclear warfare and Security Council vetoes, our discussions today could lead to a eureka in the field of natural law. Developments could even be as profoundly important as good faith to oaths. As these ideals of natural law are established, international law will hopefully flourish with it. The international law of today may be very different compared to international law of the future.