Terra Incognita: Time to liberate the world from international law

It is important to ask why so many countries have accepted as binding; concepts, borders and treaties whose origins are archaic and colonial.

By SETH J. FRANTZMAN
Updated: APRIL 30, 2016 22:27
The United Nations headquarters (photo credit: REUTERS)
The United Nations headquarters
(photo credit: REUTERS)
It’s common to hear the refrain that something is not recognized by international law. During the recent flare-up between Azerbaijani and Armenian forces in Nagorno-Karabakh, German MP Karin Strenz noted that the “current situation does not comply with international law and must be condemned.” From Northern Cyprus to the Western Sahara, the Golan Heights, Puntland in Somalia and numerous other places, reliance on archaic European concepts of international law is hampering conflict resolution, harming people and leaving the status of territories in limbo.
When Prime Minister Benjamin Netanyahu went to the Golan Heights in early April to tell people that the Golan was an integral part of Israel, he was met with a round of condemnations in the West and among Muslim countries. John Kirby at the US State Department replied that the US view was “longstanding and unchanged”: the heights are “not part of Israel,” but part of Syria. No matter that they were only part of the modern Syrian state from its independence in 1946 to 1967 and have been governed by Israel from 1967 to 2016 – they will remain forever part of Syria due to international law.
How did they become part of Syria? The British and French colonial powers drew a line in 1920 and later revised it in 1923 and 1924 after the League of Nations solidified Britain’s control over Palestine. And this is “legally binding” under international law because of the San Remo treaty and Treaty of Sevres. Who attended the San Remo conference? Great Britain, Italy, France and Japan, with the US as an observer state.
Basically, European colonial powers who were victors in the First World War.
In some cases international law may appear to benefit a country like Syria, but in other cases it may not. It is important to ask why so many countries have accepted as binding; concepts, borders and treaties whose origins are archaic and colonial.
Much of international law has its origins in conferences held by the European colonial powers and by European victors in various wars. Some of these were reactions to the evils that Europeans had perpetrated in their wars, such as the Second Geneva Convention of 1949. Similarly the Congress of Vienna after the Napoleonic Wars set the stage for later conferences, such as the Congress of Berlin.
The Hague Convention of 1899 dealing with the laws of war was attended by 26 nations, of which only six came from outside Europe (United States, Thailand, Turkey, Iran, Japan, Mexico).
European states who sought to outlaw the use of chemical weapons, which they had developed and used on each other, or to outlaw genocide, after they had put millions into gas chambers, or outlaw certain weapons they had made, should be commended for their maturity in realizing their own evils. After WWI the Kellogg-Briand pact even outlawed war.
But why is it that the world has to always wait for Europeans to decide where a border should be or which weapons should be used in war, before other states in the world can decide on their own? Why was slavery only “wrong” after Western powers decided they had done enough damage by forcibly exporting 14 million people from Africa? It was wrong before Europeans did it. People had human rights before Europeans decided the laws of war were binding.
Despite the recognition that colonialism was wrong and the critiques popular in most circles of orientalism, racism, white supremacy and eurocentrism, for some reason every colonial centerpiece has been torn down except the European-drawn borders and the international law that governs them.
In Kashmir the British borders are still recognized by the international community, even though India and Pakistan have partitioned Kashmir since 1949. Writing in The Stanford Journal of International Relations Vikas Kapur and Vipin Narang navigate the Kashmir conflict by noting that “although at first glance India’s claim to Kashmir appears consistent with international law, a more thorough analysis suggests otherwise.” The evidence? Whether or not a Kashmiri leader in 1947 had a right to agree to be part of India. As with the Israeli-Palestinian dispute, a wound inflicted almost 70 years ago bleeds on, due to the cage of “international law.”
In Somalia, whose borders were created by the European colonial powers, an area called Somaliland declared independence in 1991. It had previously been British Somaliland before 1960 and is seeking a return to independent status. No country recognizes it, lest they somehow overturn international law and lead to the breakup of Somalia, which is one of the world’s foremost failed states. So in the interests of keeping a failed state, the aspirations of a part of that state which is relatively stable must be spurned.
Similarly the Republic of Biafra in Nigeria was subjected to mass starvation and killing between 1967 and 1970 when it tried to secede from Nigeria. It was recognized by five African states, but the brutal suppression of its mainly Igbo people was due to the European-drawn colonial borders that do not respect tribal boundaries in Africa. A similar crisis over attempts to redraw borders in Congo led to the failure of the Katanga secession movement in 1960. In all of Africa the colonial borders remain “legally binding” under international law.
What we call “international law” in fact means the supposed right of Europeans to draw almost all the world’s borders and then to decide – after they decolonized – that no country may attempt to redraw, or secede, from those borders. In many cases these borders have become a deathmatch- like cage of suffering, dictatorship and even mass murder. Often minority tribes, religious or ethnic groups, forced to live in a state they do not want to be a part of, are subjected to mass slaughter, as happened in South Sudan until they were finally allowed a referendum, and which happened to the Kurds in the Middle East.
Why is Northern Cyprus, whose Turkish-speaking Muslim residents want an independent state, seen by the international community as part of Cyprus? Why was “self-determination” a concept that came to the fore only when Europeans wanted to redraw their own borders in Eastern Europe? “Self-determination” as a right never applies to Kurds, Tibetans, or others. In Europe referendums on independence, some controversial, have been held in places such as Scotland, and countries like Kosovo pried loose with support.
It is true that in the quest for independence, and the need to break up failed states, there will be human misery.
But the cage of what should be called Euronational law rather than international law plagues many conflicts and indigenous peoples. It stokes lingering hopes that areas such as the Golan, Nagorno-Karabakh, Northern Cyrprus and the Western Sahara will be returned to some 1950s or 1960s status. This is the 21st century – why are we living in the 19th or mid-20th century? The world changed greatly between 1815 and 1915, but we are told that the borders of 1915 must remain, whether it is Sykes-Picot or the Curzon Line.
We must liberate ourselves from the mental cage of Euronational Law. The borders created by the European colonial powers were and remain a disaster for many, many people. Given Europe’s own inability to solve its Schengen area borders arrangement in the face of the migrant crisis, it’s time for countries to ponder the value of leaving these archaic views behind. When someone tells you a country cannot have rights because of Montevideo Convention on the Rights and Duties of States (1933) or because of San Remo, it’s time to note that perhaps San Remo or Montevideo or any other convention that was appropriate for its time has less relevance now.
Euronational law has colonized our mindset for long enough. A new framework devoted to solving border disputes and demands for independence is needed, with a view toward the future.
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