Is There a General Interest Hors La Loi?
Hélène Ruiz Fabri , Emmanuelle Jouannet , and Vincent Tomkiewicz eds, Portland: Hart Publishing, 2008, 279-292
Select Proceedings of the European Society of International Law. Volume 1, 2006
9 Pages Posted: 1 Nov 2017
Date Written: 2008
The term ‘interest’ is entrenched in political and diplomatic discourse since at least the late 16th century. It is, in fact, one of the constitutive concepts in politics, which would be difficult to imagine without ‘interest’. And equally so international law. Now, what sort of interest does international law serve – specific interests or the general interest? For such a question, most people would probably look to the multilateral ‘law-making’ conventions. And the purpose of such conventions can be ascertained, presumably, from their preambles. The 1907 XIII Hague Convention concerning the rights and duties of neutral powers in naval war was fairly modest in its aspirations. The preamble declared that the Convention was set out ‘[w]ith a view to harmonizing the divergent views’ and that it was ‘undeniably advantageous to frame, as far as possible, rules of general application to meet the case where war has unfortunately broken out’. The Covenant of the League of Nations, in a short preamble, was more ambitious and declared that it had been created ‘[I]n order to promote international co-operation and to achieve international peace and security.’ In the UN Charter, ‘the peoples’ famously declared themselves ‘determined to save succeeding generations from the scourge of war, … to reaffirm faith in fundamental human rights … to establish conditions under which justice and respect for the obligations .. of international law can be maintained, and to promote social progress and better standards of life in larger freedom.’ These goals undoubtedly sound like general interests. Even such a technical treaty as the Vienna Convention on the Law of Treaties believes that ‘the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of co-operation among nations.’ The preamble of the Rome Statute of the International Criminal Court, the result of many benevolent aspirations, is replete with references to the general good: The parties are ‘Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, /… and/ Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. Evidently, it is the view of international law, or at least the drafters of the relevant conventions will have us so believe, that international law does serve the general interest. And the aspirations have become bolder and more eloquent over time. Is that a true picture? Before I turn to that question – which I will answer only indirectly – let me say a few words about my experience of the role of international law in the decision-making process in foreign policy.
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