- CHRISTIANA ESSIE SAGAY
"Almost all nations observe almost all principles of international law and almost all of their obligations almost all the time."
Louis Henkin - How Nations Behave
Almost all of the time – not all of the time.
Critics have latched on to the potential for politicizing the United Nations' mandate as a reason for censuring the institutional framework of the United Nations system and its agencies as flawed. Perhaps the seeming dichotomy in obligations within the United Nations system lends some credence to this school of thought. In its creation and in participation, the objectives of the United Nations and its member states seem to be at polar opposites. For instance, in its creation, the United Nations System centers on a sense of commitment and solidarity by member states to see humanity flourish and to never again experience the scourge of World War II – a front united, all things aside. On the participation side, the idea that the very notion of inter-state relations could very well rest on the barebones of independent states who donate legitimacy to the United Nations system while also pursuing the foreign policy objectives of their countries becomes curious to the objectives of its creation.
You see, right after World War II, in 1945, fifty-one countries came together and committed to the creation of an international legal order. This international order, whose primary objective was to enhance international cooperation, was charged with the responsibility of keeping peace throughout the world, developing friendly relations among nations, helping nations work together to advance the lives of poor people to conquer hunger, disease and illiteracy, and to inspire respect for each other's rights and freedoms, as well as to be the center for harmonizing the actions of nations to achieve these goals. In this stead, the conducts of member states were expected to fixate on strengthening the core.
In the 75 years that followed the establishment of the United Nations, though not without its fair share of challenges, it has been applauded for some meaningful achievements. For one, the dismantling of colonization has been widely attributed to the work of the United Nations. Also, the development of a human rights regime has been applauded as creating a gradual shift from the predominantly state-centric international law regime to a regime that donates a wealth of substantive human rights and some relative procedural rights to individuals. All these while utilizing the good office of the United Nations Secretary-General as a launchpad for soft diplomacy – nudging state parties to fulfill international obligations and active participation towards attaining sustainable development goals for the world at large. Also, expectant that within this "unified" system, states would not utilize their national obligations to defeat the common purpose the expansion of a vibrant international legal order.
However, the commitment and solidarity expressed to the "unified center" lurking in the shadows is the somewhat unflinching commitment to the demands of national foreign policy goals. The distributed commitment between state and international obligations brings to the fore the staggering effect and asymmetry a polarized system of obligation exerts on the accord at the center – especially in developing international relations and the smooth functioning of the United Nations System. Where this asymmetry occurs at the hands of states deemed hegemon within the international order, it has the potential to cause other states to act differently and further weaken the international system.
One can see, for example, how the economic sanctions levelled by the United States (US) against officials of the International Criminal Court (ICC) earlier this year by Executive Order 13928 brought to the fore the pendulum of obligations – national and international. On June 11, the US issued economic sanctions through an Executive Order on Blocking the Property of Certain Persons Associated with the International Criminal Court against Fatou Bensouda, Chief prosecutor of the International Criminal Court (ICC), and ICC's Head of Jurisdiction, Complementary, and Cooperation Division Phakiso Mochochoko on the claims that these officials through the ICC have attempted to assert jurisdiction over personnel of the United States and Israel – a United States ally, even though the United States and Israel are not parties to the Rome Statute - thus outside the jurisdiction of the ICC.
Though the principles of jurisdiction and territorial sovereignty purportedly infringed on are foundational to international law and the ICC’s mandate, the response to the purported breach through the use of sanctions has been described as overkill. In addition, the sanctions levelled call into question the mandate of the ICC and the potency of the appeal chamber's ruling where it disputes any assertion of jurisdiction over the US and Israel. In its ruling, the appeal chamber granted the prosecutor authority "to investigate, within the parameters identified in the Prosecutor's request of November 20, 2017," calling into question the allegation of breach of territorial sovereignty. Examined in this light, the idea of obligation thus seems fluid – quite often creating tension between national-interest and international responsibility.
And though the United Nations System exists to ensure that the world stays afloat and hold states accountable to their international obligations and commitment, the exigencies of political necessity and "foreign policy" concerns may hinder the effective management and mandate of the United Nations system, including the gradual dismantling of the core. Without any doubt, the United Nations has had many of its shortcomings. However, it has played a crucial role. And, it continues to play a pivotal role in making human society more civil, peaceful and safe.
Whatever your school of thought, whichever side of the pendulum you lean, two things are certain – the existence of effective and independent states is a sine qua non for the proper functioning of multilateralism and an international legal order, at the same time, the exigencies of state actions that neutralize the commonality of the center chips at the very essence of the international normative order.