From Nazi Germany to territorial disputes: CJ Sundaresh Menon cites examples of how international law is applied

Chief Justice Sundaresh Menon delivering the 11th S. Rajaratnam Lecture on Oct 15, 2019.
Chief Justice Sundaresh Menon delivering the 11th S. Rajaratnam Lecture on Oct 15, 2019.ST PHOTO: GAVIN FOO

SINGAPORE - Chief Justice Sundaresh Menon on Tuesday (Oct 15) cited examples, post-World War II, of the application of a growing and vibrant body of international law.

The Chief Justice was delivering the 11th S. Rajaratnam Lecture, an annual platform organised by Singapore's Ministry of Foreign Affairs for distinguished public figures to speak on topics related to diplomacy and international relations.

The Nuremberg trials

These were a series of trials carried out in Nuremberg, Germany, between 1945 and 1949 to bring Nazi war criminals to justice.

Judges from the Allied powers - Great Britain, France, the Soviet Union and the United States - presided over a military tribunal.

Of the 24 prominent Nazis who were indicted, 12 were sentenced to death.

The trials are considered a milestone in international law, and an important precedent for dealing with later cases of genocide and crimes against humanity. They led to the United Nations Genocide Convention (1948) and Universal Declaration of Human Rights (1948), as well as the Geneva Convention on the Laws and Customs of War (1949).

International Court of Justice (ICJ)

In February, the United Nations' highest court, the ICJ, held that the United Kingdom should end its control of the Chagos Islands in the Indian Ocean.

Mauritius claimed it was forced to give up the islands - a British overseas territory - in 1965 in exchange for independence, which it gained in 1968.

 

Notably, the ICJ decided it was in a position to provide an advisory opinion, even though opinion on bilateral disputes can be issued only with the consent of both parties, which the UK had not given.

The ICJ side-stepped the problem by framing the issue as a broader one relating to decolonisation, rather than a territorial dispute.

The General Assembly subsequently welcomed the ICJ's opinion, saying respect for the court and its functions is essential to an international order based on the rule of law.

Investor-state dispute settlement (ISDS)

ISDS, which allows foreign investors to bring claims directly against the host state, tends to be less cumbersome and more cost-effective than conventional state-to-state dispute resolution.

It can prevent more powerful states from favouring their own nationals through diplomatic or military interventions in weaker host states.

ISDS has faced increasing political pushback in recent years, owing to concerns that tribunals used in arbitration may impinge on state sovereignty.

But Singapore has participated actively in the international dialogue to develop a fair, workable and cost-effective ISDS framework, said Chief Justice Menon.

New ideas include establishing an appeals body, and a permanent investment court to improve decisions and guarantee the independence of adjudicators.

International sanctions

International law can also be enforced through sanctions that interrupt trade flows or sever diplomatic relations.

Examples include the nearly 20-year financial and trade embargo imposed on Iraq following its invasion of Kuwait in 1990, and multiple embargoes on North Korea because of its nuclear pursuits.

While their effectiveness is debatable, sanctions have an important communicative function. They signal the international community's condemnation of norm violations and its willingness to act powerfully, but peacefully, to maintain the international rule of law.

Soft enforcement

This is a process by which countries review whether other states have complied with international law. The best-known example is the UN Human Rights Council's Universal Periodic Review (UPR), in which countries submit national reports every four years of actions they have taken to improve their human rights situation.

The Montreal Protocol on Substances that Deplete the Ozone Layer, ratified by all 197 UN member states, is another successful example.

It encourages compliance through the "mobilisation of shame", rather than confrontation and formal dispute settlement.

A state's reasons for non-compliance are placed before a meeting of other states, which then decide how to assist it. This approach ensures collective compliance with international environmental law.