by Sandra Simić
Part I – Peace Through Law
Beethoven composed the Ode to Joy after becoming deaf because he could hear it in his heart and mind. The Ode to Joy has become the anthem of the European Union, celebrating peace between nations with a previously continuous history of wars. “The poem Ode to Joy expresses Schiller’s idealistic vision of the human race becoming brothers – a vision Beethoven shared”. Let this melody be the underlying music of this essay series, in search of new visions for international peace.
The history shows a long record of declared and undeclared wars and various types of violence. Even today, in the age we like to call the age of progress, there are too many armed conflicts and violence throughout the globe, with devastating consequences for the people affected. The fact that we have not been able to find a solution for international peace yet, while opportunities are everywhere, speaks for itself. Respecting many valuable peace initiatives, the author would primarily like to emphasize the value of the public international law in creating international peace, as it provides the legal framework for peaceful relations between nations.
This essay series was motivated by an increasing number of wars and conflicts worldwide, the desire to express a strong pacifistic voice and inspire others to do the same. Within the limits of our influence, we are all responsible for the creation of world peace, towards which the intellectuals, in particular, are called to make a contribution.
Public international law, interpreted correctly and changed where necessary, has the potential to secure peaceful relations between nations as well as their development.
Historically, the roots of public international law may be traced back to the times of Aristotle, who thought that the state and its citizens are the product of nature. Roman jurist Gaius in his Institutes divided all law into jus civile and jus gentium. The former relates to the law written by the people for their purposes, while the latter is the law shared by all people because it is rooted in natural reason (naturalis ratio). According to Gaius, the Roman people applied both categories. Many notable legal scientists influenced the development of the public international law throughout centuries, however, the Dutch lawyer, theologian, philosopher, and poet Hugo Grotius, who lived at the end of the 16th and in the 17th century, made the greatest contribution. Consequently, he is called the father of the international law. Although he believed in God, and was a theologian, he distanced natural law from God, considering it based on reason and nature of human beings. (2)
The ideas of war being morally acceptable as self-defense and in order to re-establish peace were accepted a long time ago, for instance, in classical Greek and Roman theories and in the works of Saint Augustine. Saint Thomas Aquinas later developed the Christian Just War Doctrine. Many schools of thought developed throughout history on the subject of war and peace. The most interesting and inspiring ideas, seeking to re-connect mankind above religious differences, were those of Hugo Grotius. Grotius and other naturalist writers agreed that the basic principles of all law were derived from “principles of justice which had a universal and eternal validity and which could be discovered by pure reason; law was to be found, not made.” It is important to note that although “natural law was originally regarded as having a divine origin”, Grotius considered that “natural law would still have existed even if God had not existed”. (3) Some concepts like general principles of law are explained today as rooted in natural law.
Contemporary application of public international law by jurists represents a combination of positivist and naturalist approach, which means that positive law is applied first, while natural law theory complements interpretation only in cases when the law is ambiguous, needs updating, or may violate a jus cogens norm, in which cases a jurist will consider important values of the community and the purpose of law generally. (4) Consequently, the legal process theory is complemented with natural law theory, in order to balance the rigidity of the written norm with a human perspective. This might be compared to the role of the jury in trials, as the underlying idea is the same, it is not entirely possible to capture the fairness in the written law. Life itself will always be more creative and ultimately, what justice really means will be up to the jurist making the decision, which is why a lawyer is continuously on the path where law and justice meet.
The author shares the line of thinking which seeks to find something timeless, universal and natural in justice, something that transcends power struggles and national borders and offers a vision of shared humanity.
United Nations have a pivotal role in ensuring international peace, as they equally represent the world population and have the means and opportunity to create a peaceful world. Article 1 of the UN Charter sets out the purposes of the UN, such as maintaining international peace and security, developing friendly relations between nations and strengthening universal peace.
The UN General Assembly, recalling many previously adopted international instruments relevant to this subject, adopted on 19 December 2016 Declaration on the Right to Peace, which declares in its article 1: “Everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized.”
Article 2(4) of the United Nations Charter prohibits the use of force. Chapter VI of the Charter lists ways for pacific settlements of disputes between states, while Chapter VII provides action of the UN Security Council with respect to threats to the peace, breaches of the peace and acts of aggression. The authorization from the UN Security Council is needed for the use of force.
In conclusion, the Charter should always be interpreted in a way which leads to international peace, while the use of force is only an exception which has to be decided carefully and in a balanced manner, in order to maintain and restore peace.
Even though the international law is a binding system of authority accepted by governments worldwide, a renowned American Professor of Law Mary Ellen O’Connell warns that there are many publications which perpetuate misunderstandings about this area of law, particularly regarding the means of enforcement, the basis for authority and the rules restraining the use of force. (7). O’Connell’s work is outstanding. She writes systematically and in great detail about the origins and development of these erroneous theories, which affect the application of international law today.
We hold the legal key for international peace through correct application of public international law. It is necessary to understand and promote the importance of this area of law in order to distinguish myth from truth, as it all matters in our search for international peace. The inspiring legacy of Hugo Grotius teaches us that justice is natural, universal and beyond religious differences.
In the globalized and highly interconnected world of today and tomorrow, the influence and power of public international law will only rise.
- Paul Craig and Gráinne de Búrca, “EU law text, cases, and materials”, fourth edition, Oxford University Press, 2008.
- Degan, V. Đ., “Međunarodno pravo “, Pravni fakultet Sveučilišta u Rijeci, 2000, p. 33-47.
- Malanczuk, Peter, “Akehurst’s Modern introduction to international law” seventh revised edition, Routledge, 1997-2003, p.15-16 (two quoted sentences).
- O’Connell, Mary Ellen, „The Power and Purpose of International Law“, Oxford University Press 2008, p. 137-138.
- United Nations Charter.
- Resolution 71/189 adopted by the UN General Assembly on 19 December 2016 – Declaration on the Right to Peace.
- O’Connell, Mary Ellen, “Belief in the Authority of International Law for Peace”, in: Justenhoven, Heinz-Gerhard, O’Connell, Mary Ellen (eds.), Peace through law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science, 1. Edition 2016, Nomos Verlagsgesellschaft, p. 50.
Sandra Simić, mag.iur., LLM, is a lawyer specialized in Public International Law and European Law (University of London, Queen Mary&University College London), with extensive professional experience in private (Attorney at Law) and public sector. This essay represents her personal opinion. She may be reached at: firstname.lastname@example.org; SandraSimic©2018-2019.