By Nuri Alhala

International law has made remarkable progress in a fairly short space of time. States have adopted instruments and founded international bodies to punish perpetrators of war crimes and human lights violations. They have introduced rules and established international courts to protect free trade.

There are courts to settle disputes between states, such as the International Court of Justice (ICJ) at the Hague, and courts in which citizens can call states to account for human rights violations, such as the Inter-American Court of Human Rights and the European Court of Human Rights. Many countries have agreed to accede to international conventions on genocide, crimes against humanity and the imprescriptibility of such crimes, and some, like Argentina, have gone so far as to repeal existing amnesty laws. Some lawyers even consider that crimes against humanity ought to be open to prosecution anywhere, because of the peculiar nature of such crimes.

International law and institutions are interested in the activities of economic operators, but their interest shows a certain bias. Almost 10 years ago, in 1994, an international court, the Dispute Settlement Body (DSB) was quietly established within the World Trade Organization (WTO) to decide cases brought against states for breach of the sacrosanct principle of free trade and competition. But most crimes committed by transnational corporations go unpunished. For example, the actions for forced labour brought by Burmese workers against TotalFinaElf in Belgium are a dead letter.

People in many countries are making it known that they want perpetrators of crimes against humanity to be punished. And, whether they like it or not, governments have to respond to popular demand and establish appropriate judicial institutions. But the big national and transnational corporations insist that trade must be liberalized and stales must be subject to the rules on liberalization. And states, which normally attach so much importance to sovereignty and freedom of action, and refuse to be judged on their human rights record, are meekly agreeing to be brought to book for breach of the rules on free trade.

Much is written about the rule of law and even about establishing the rule of international law, but the concept of law itself is rarely questioned. The law is not a fixed quantity: laws depend on the circumstances in which they arise, and they may change as those who promulgate them and those who interpret, apply and use them change. Karl Marx considered that the law reflects the balance of power in society at a given time.

So the law is not sacred, although the obligation to obey has been a mark of progress in human society since the age of enlightenment. There are hierarchies within the law, and the whole elaborate edifice of international commercial law constructed over the past 10 years means that trade and trade regulations are now the general rule and social or environmental protection the exception.

International law is mostly made by governments, which pay scant respect to the separation of legislative, executive and judicial powers. Treaties are negotiated exclusively by the executive. The citizens' representatives in parliament intervene after the event to ratify or refuse to ratify the convention, but they cannot change its terms. So rules that are to be internationally applicable in law are dictated by the strongest states and the power of the transnationals. And if the WTO and the DSB exercise so much power while refusing to comply with provisions protecting the rights of the people, it must be because states are resolved that they should and because our rulers are more willing to submit to the laws imposed by transnational trade than the law governing international relations.

Can people change the course of international law and regain their power of decision? Perhaps. They must first recover the law-making tradition that has been an essential part of the democratic heritage since 1789. Fundamental rights are a powerful weapon capable, if properly understood of arresting the development of a system of law based entirely on the primacy of trade and profit. It is a civic duty to assert these rights, to rebel against resignation, the erosion of democracy and the idea that might (or wealth) is right. Tenants’ associations are well aware of the support they derive from the declaration, in the 1966 UN Covenant on economic, social and cultural rights, that everyone has a right to housing.

Citizens can also make their presence felt by moving into many areas from which they cannot bу excluded, by speaking up at the major G8 or WTO summits or counter-summits and in bodies that have some power and independence. The UN Human Rights Subcommittee composed of independent experts with assistance from NGOs, has produced a number of international conventions subsequently adopted by states and drew up and submitted in August draft norms on the responsibilities of transnational corporations.

The United Nations is still a place where progress can be made in the interests of the people. We look forward to the day when it is more democratic and can make an even greater contribution.