Increasing the Legitimacy of International Law and the democratization of International Law-Making
United Nations HQ, New York City. Photo: David Donat Cattin
On 12 January 2023, Parliamentarians for Global Action (PGA) and the International Law Association (ILA) co-organized a webinar on “Increasing the Legitimacy of International Law: The Role of Parliament).” On this occasion, which coincided with the ILA’s 150th Anniversary, Members of Parliament, academics, and experts gathered to discuss how best to contribute to the formation of international law in the face of the current and multiple challenges it faces.
Over the years, international instruments have been, and are still negotiated, under the auspices of the United Nations and other intergovernmental organizations through a process where many key stakeholders are admitted as observers. However, the negotiations, subsequent drafting, and adoption of the texts are usually conducted exclusively by representatives of the Executive branch. Members of Parliaments are rarely, if ever, invited to the discussions. Their role has been limited to the ratification stage.
States have particular interests and positions to defend at the negotiation table, which do not necessarily represent most people. In States where implementing legislation is needed, Parliaments may tailor the treaty's provisions to their domestic context at the risk of straying away from the original intent and coherence of the instrument. This may result in isolating that country from a common or harmonized international enforcement of the treaty. In countries without implementing legislation, the only choice offered to Parliaments is to accept or reject the international instrument.
As conveyed by Prof. Philippe Sands, Professor at Int. Law University College of London, one of the issues with international law is a sense of “disconnect” for many people on the ground as it is made in faraway places, and no real input from the public or legislators is given to it. Nonetheless, Parliaments can break that cycle by making international law more open, transparent, and legitimate. As the branch closest to the citizens and most responsive to the public needs and opinion, the Legislatures should play a pivotal role in negotiating multilateral treaties and forming international law. This is particularly true on three exemplary issues:
- Including the crime of ecocide as an international crime in the ICC Statute. This idea came directly from parliamentarians, mainly from Belgium, and is now being debated at the European Parliament (EP). It is the parliamentary intervention that has been taking this project forward, albeit still in progress;
- The ongoing collapse of the Energy Charter Treaty has been driven by the action of parliamentarians, who were outraged that a treaty instrument drafted in the 90s undermined the efforts of many governments to address the causes of climate change (carbon emissions). It began with activists, but the movement took off with a parliamentary inquiry. As a result, Germany, France, Italy, The Netherlands, and other States are withdrawing from this antiquated treaty; and<
- Discussions to create a Special Tribunal on the crime of aggression in and against Ukraine, instigated by parliamentarians and/or parliamentary organizations (e.g., the Chairpersons of the Foreign Affairs Committees of many European countries convened by the UK one, the Parliamentary Assembly of the Council of Europe, NATO’s Assembly, and the EP).
These are a few examples where the role of parliamentarians has been critical in transforming and shaping international law. In that respect, the Keynote speaker of the event, PGA Member Hon. Millie Grace Odhiambo, MP (Kenya), stressed that the importance of international law had been underestimated over the years. Still, with the new challenges ahead, its relevance in the national sphere has become more apparent. With its 2010 Constitution, Kenyan legislators ensured that general rules of international law and treaties/conventions ratified by Kenya form part of its internal law. With the Treaty Making and Ratification Act (2012) sponsored by Hon. Odhiambo, the National Assembly can now engage in the ratification process even if the primary competence for negotiating and ratifying a particular treaty remains within the power of the Executive. Additionally, to ensure public participation, the Parliament can advertise the treaty and write letters to expert groups to provide opinions in the relevant parliamentary committees. Unfortunately, as highlighted by her, the challenge is that, in practice, many people still need to internalize that parliamentarians hold this important constitutionally based prerogative.
In her remarks, PGA Member Hon. Emilie Béatrice Epaye, MP (Central African Republic), argued that humanity might not underestimate the challenges and role Parliaments play in international relations. In the Central African Republic, an analysis of the provisions of the 2016 Constitution in its chapter on Legislative Power, the Rules of Procedure on parliamentary procedure in matters of treaties and conventions, as well as the regional approach in the Pan-African Parliament (PAP) and the sub-regional Parliament of the Economic and Monetary Community of Central Africa (CEMAC), showed little to no involvement of parliaments in the drafting of treaties.
As stressed by Hon. Epaye, if the aim is to increase international law’s legitimacy, parliamentarians – who are not necessarily legal professionals – should receive appropriate training to strengthen their technical capacities, for it would not only fortify Parliaments but also enhance legislators’ abilities to elaborate more comprehensive laws. Accordingly, citizens should also be better informed to be able to participate in the formation of international law through their representatives.
On her side, the Vice-President of the European Parliament and PGA Member, Ms. Heidi Hautala, MEP (Finland), conveyed that, thanks to the competence conferred by art. 218 of the Treaty on the Functioning of the European Union (TFUE), the EP can consent or not to adopt an international treaty by the Council and needs to be informed at all stages of the negotiation procedure undertaken by the Commission. In this respect, the EP holds a powerful strength and competence which it has fully used to get involved in trade-related negotiations (e.g., the Transatlantic Trade and Investment Partnership (TTIP), the Anti-Counterfeiting Trade Agreement (ACTA) or the Energy Charter Agreement (ECT)).
Even if the EP should have a more prominent role in the foreign affairs and security policy of the European Union (EU), as emphasized by Ms. Hautala, it is a good example of how parliaments can influence the political agenda. When the United Nations Human Rights Council adopted the UN Guiding Principle of Business and Human Rights, it was supposed to remain soft low. Nevertheless, the EU turned these principles into “hard” EU law instruments, while the EP played a vital role in this process. Suitably, parliaments should also accept that the direct participation of citizens in decision-making is an asset.
Today, democracies and their institutions face enormous challenges, one being the increasing avalanche of misinformation and disinformation from social media platforms and media outlets. PGA member Asambleísta Esther Cuesta Santana, MP (Ecuador), stressed that, unfortunately, the hegemonic power of some traditional media outlets and new forms of communication has undoubtedly shaped how parliamentarians and parliaments are perceived, especially in Latin America. The idea that legislators don’t resolve problems is bringing Parliaments to low rates of approval and trust. However, some Parliaments, such as the Ecuadorian, are mobilizing to strengthen their legitimacy through concrete efforts. The National Assembly passed a Bill on the amendments to the Law on International Treaties and Interinstitutional Agreements, which, nevertheless, was vetoed by the President in 2022. Although this Bill does not include Parliament’s involvement in drafting or negotiating international treaties, Asambleísta Santana expects that once it is approved, reforms can be proposed to guarantee MPs’ participation at different stages of the process.
For this, as she remarked, it is ideal that parliamentarians get trained in international law and familiarize themselves with the global human rights system to not only understand the different mandates, institutions, and existing limits but also increase the qualitative engagement of the Legislatures on global affairs. Asambleísta Santana announced during the event that she would present a draft Bill that creates a system to monitor the implementation of Ecuador’s international legal obligations. Drafting such internal legislation is of utmost importance, particularly in countries with strong opposition between the Executive and Legislative branches or where there is a politicized judiciary that unduly interferes with democratically elected institutions.
Finally, Prof. Irwin Cotler, Chair of the Raoul Wallenberg Centre for Human Rights (RWCHR) and former Attorney General and Ministry of Justice of Canada, focused his intervention on concrete actions where parliamentary intervention and participation have been essential in Canada to increase the legitimacy of international law:
- Drafting of the Crimes Against Humanity and War Crimes Actimplementing the Rome Statute of the International Criminal Court;
- Hosting PGA’s first-ever Consultative Assembly of Parliamentarians on the International Criminal Court and the Rule of Law (CAP-ICC) in Ottawa, 2002;
- Supporting efforts to prosecute War Crimes and Crimes Against Humanity committed in Rwanda on the basis of the principle of Universal Jurisdiction;
- Supporting the Organization of American States (OAS) commission of inquiry to investigate Crimes Against Humanity allegedly committed in Venezuela (of which Prof. Cotler was appointed as commissioner). This effort led to the collective referral by a group of States of the Situation in Venezuela to the ICC;
- Drafting and adopting the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) to combat the culture of impunity. Mr. Boris Nemtsov and Vladimir Kara-Murza supported Prof. Cotler in the tabling of this legislation.
In addition to these critical contributions to the vital interplay between the domestic legal order and the international legal system, as the world faces a historical inflection moment where democracy is backsliding and authoritarianism is rapidly spreading, Prof. Cotler also showcased three other examples of parliamentary influence to combat the assault on the rules-based international order:
- Canada’s Foreign Affairs Committee hearings into Russia’s war of aggression in and against Ukraine with allegations of War Crimes, Crimes Against Humanity, and Genocide being committed. He recommended that Canada should join the process to help establish an independent special Tribunal for Russia’s aggression and imposed Magnitsky sanctions;
- For the last 12 years, the Canadian Foreign Affairs Committee has held the Annual Iran Accountability Week, in which Canadian MPs discussed the human rights situations in Iran and the pain and plight that women, journalists, and other minorities have gone through. This practice has also led the Canadian Parliament to call for the removal of Iran from the United Nations Commission on the Status of Women and the imposition of Magnitsky Sanctions against the Islamic Revolutionary Guard Corps (IRGC); and
- Initiative to create the Inter-Parliamentary Alliance on China, where the determination was reached that mass atrocities targeting the Uyghurs may constitute genocide and attacks against Hong Kong, is a standing violation of the Sino-British Agreement.
To conclude the debate, PGA’s outgoing Secretary-General, Dr. David Donat Cattin, highlighted that the interventions made by PGA members brought a sense of practicality to the discussion while referring to treaties, norms, and soft law provisions which have a tangible impact on society. The cases of Kenya, Ecuador, and the Central African Republic provide an excellent example of the centrality of international law in their constitutions (all revised in the last twenty years), therefore putting into relevance the necessity of having a good constitutional framework as a starting point.
Dr. Donat Cattin underlined that even when a State decides to exercise its prerogatives and withdraw unilaterally from a given treaty - especially when its Executive decisions are dictated by its unwillingness to comply with international obligations (e.g., Philippines’ President Duterte’s decision to withdraw from the Rome Statute when he found out he and other high-level government officials could have been indicted for alleged of Crimes Against Humanity in the so-called “war on drugs”) - it is essential to demonstrate that this type of actions can have severe repercussions for the State and the citizens themselves. In this scenario, the legitimacy of the ratification of international treaties must be respected. Parliaments should be required to approve or concur with the withdrawal if Parliament had already approved or concurred with the ratification: The Executive cannot bypass constitutionally approved decisions through unilateral Executive actions when National Constitutions are conferring special powers to the Legislature concerning treaty ratification.
The representative of PGA also called upon more leadership by public international lawyers when national nomination processes for key international positions are taking place. In this respect, independent academics should do their best to be selected as judicial candidates for the International Court of Justice, the International Criminal Court, and other jurisdictional bodies in which Government officials and Legal Advisors to the Executive have been more and more replacing independent jurists and prominent scholars.
Toward the goals of democratization and legitimization of international law processes, PGA calls on the International Law Association and public international lawyers to collaborate more closely with Members of Parliament. As legislators participating in the event said, more training in understanding international law and its functioning is required to draft better laws and comply with national obligations.
Original publication is here