Nuclear weapons, climate change, the application of law to armed conflict and pandemics are four key issues of immediate concern to the United Nations (UN) international committee, according to Sir Kenneth Keith.
The first New Zealander elected permanently to the International Court of Justice, Sir Kenneth recently gave an address at AUT Law School.
A dominant theme of his talk was the importance of officials using the existing system to its full potential and demonstrating a determination to get facts right.
His list of “role models” included the seventh Secretary-General of the UN, Kofi Annan and Hans Blix, the former Head of the UN Monitoring, Verification and Inspection Commission.
He also shared insights on current topics of interest in the international community.
Ageing legal mechanisms
“Existing mechanisms for international law making and dispute resolution can seem primitive,” Sir Kenneth said.
“There are real problems in getting the law to move in the ways that are needed, especially around issues like nuclear weapons and climate change. But there is ability to change and this does get remarkably demonstrated at times.”
United Nations veto
“The UN, particularly the Security Council, is very much a creature of 1945 and if it were established today France, Russia and the United Kingdom would not be given the power of veto. But to change that veto requires their agreement which is very unlikely.”
Good law and good management
“Too often international lawyers talk about settling disputes as if there’s something finite you can just get rid of. But often you are concerned with a situation and with managing it.
“For the likes of a dispute over managing an endangered fish stock, having an occasional one-off dispute in the court isn’t going to resolve the issues. It is often about getting the process right rather than allocation – good law and good management.”
“Much is made of the failures of the UN and the Security Council, but more often than not these are caused by the failure of states,” Sir Kenneth said.
“If you’ve got good officials you can get some good traction. A lot depends on having very good people who are willing to take risks and move things along.
“It’s a matter of people actually meeting their obligations – they’re meant to settle disputes by peaceful means if there’s a real threat to international peace and security.”
Right to self defence
“Article 51 of the UN Charter has been read a bit more generally because it refers to an inherent right which tends to throw back to earlier law which does enable you to take action if the threat is imminent. In recent years ‘imminent’ has tended to be read far too widely.
“There are obviously real problems with working an international system when states are not willing to look carefully at the facts quite apart from the law.”
The word ‘war’
“Especially when we consider Article 51, it’s really important that people use words like ‘war’ and ‘terrorism’ carefully.
“The word ‘war’ can blind people to legal categorisations. But it may also be that the law needs to move on a bit in terms of the right of states to take action against rogues of one kind and another. But you’ve got to be really careful about how that develops, or there is a real danger of a free for all.”