INTERNATIONAL LAW AGAINST THE BACKDROP OF NATIONALIST POLITICS

INTERNATIONAL LAW AGAINST THE BACKDROP OF NATIONALIST POLITICS PRESENTED BY AZMIR SHAH ZAINAL ABIDIN INTERNATIONAL AFFAIRS DIVISION ATTORNEY GENERAL’S CHAMBERS MALAYSIA

To provide an overview of International Law and its developments To look at the proliferation of nationalist politics and its effect on the development of International Law To examine whether the development of International Law has been stifled by Nationalist Politics PURPOSE OF THE TOPIC

What is international law? “International law governs relation between independent states. The rules of law binding upon states therefore emanate from their own will as expressed in conventions [treaties] or by usages generally accepted as expressing principles of law established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. ” (SS Lotus Case (France v Turkey) (1927) PCIJ Rep. Ser A No. 10, 1 3

STATEHOOD PERMANENT POPULATION DEFINED TERRITORY STATE GOVERNMENT CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES 4

Westphalian view § States are sovereign and entitled to non-interference § Submission to customary international law is still considered as a voluntary process § Even when States enter into a treaty, their sovereignty remains intact § Domestic courts and other institutions are required to comply with treaty norms only if the State promulgates the treaty into its domestic law § Westphalian view came under criticism as it allows States to act unilaterally– Examples: US immigration, trade and environment policies, China’s expansion in South China Sea

HOW DOES INTERNATIONAL LAW DEVELOP? q The foundations of International Law or Law of Nations lie firmly in the development of States practices, culture and conduct of political organizations whereby interstate relations are conducted in accordance with commonly accepted standards and behavior. q No supreme authority in the international community § No compulsory procedures for law making § States determine the development

DEVELOPMENTS OF INTERNATIONAL LAW Pre 1945 v. post 1945 • Creation of the United Nations • Cold war • Development of individual States and Blocs in the areas of trade and military Art 1(2) v. Art 2(7) of the United Nations Charter • Self determination v. non interference of domestic affairs 7

The idea of the people q In politics, International Law is important but voters are more important q Results of elections determine the fate of a nation q People provides the political ideas which translated into actions of a State Lord Acton- “people are the controller of nationalist politics which mould the measures of a State” 8

NATIONALISM 1) Strong support for and pride in one’s own country, often to an extreme degree. 2) Belief in political independence for a particular country. Oxford Dictionary and Thesaurus 9

NATIONALISM q Nationalists argue that international law only benefit the elite and influential countries. q Populist leaders say the elite enriches themselves at the expense of the people, or show greater concern for minorities than the common citizen q Rhetorically, populists blame foreign influences and international institutions for the nation’s problem. q Examples: § § International Monetary Fund (IMF)- (debt laden States given loan conditional on the market based reforms in the borrower’s economy International Criminal Court (ICC)- (African States challenges the impartiality and due process, arguing that the Court practices selective prosecution)

The different doctrines International law v. Nationalism State based oriented = Nations and people Both doctrines are connected by the States control international law and people through nationalism control the actions of the States 11

Clashes between International Law and nationalist politics? q Post 1945 rampant clashes, hence the development of international law has stagnate. q Sovereignty and nationalist politics override international law when the two collides q UN system is important yet limited due to its lack of political capabilities. § § non interference of domestic affairs action under Chapter VII limited and controlled by the powerful States

CONTINUE q Increasing gaps and differences on the actions/practices of States makes it difficult for International Law to develop naturally. § Refugees Convention 1951: developed to protect displaced people after WWII and contained principles of customary international law such as the non refoulment principle. Most European States are parties but in the past decade, we see discontent from some Member States triggered by its citizen as the obligations in the Convention imposes heavy burden on the resources of Member States q Possible not to be party but still adhere to the principles of the Convention. Malaysia took that approach whereby protection given to refugees on humanitarian grounds, including the non refoulment principle

No extreme position. POSSIBLE RECONCILIATION BETWEEN INTERNATIONAL LAW AND NATIONALISM Eg. Universal Declaration of Human Rights Being objective by having groupings or blocs as a check and balance Uphold international obligations and the principles of United Nations Charter An international body to look into this, i. e the International Law Commission 14

15