‘The way to change the game is to change the frame’ – William Ury (Director of the Global Negotiation Project at Harvard University).
‘Appreciate their point of view. Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you answer it.’
The late Professor Roger Fisher (Roger Fisher (academic) – Wikipedia) in a two hour conversation with Carl Islam at Harvard Law School during a research visit as a Scholar from King’s College London to Harvard University in April 2002.
‘In the heat of a dispute it is easy for scholars and statesmen alike to forget that, though life can only be understood backwards, it must be lived forwards.’ (‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’ by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353).
The working title of my next book, which I plan to research and write from 2025 onwards, is ‘International Dispute Settlement.‘
My aim is to write a practical Handbook for Lawyers, Diplomats, NGO’s, Mediators, and students, about the Legal and Diplomatic methods available, and organisations used, to resolve disputes between state parties, including: negotiation; mediation; inquiry; conciliation; arbitration; and litigation in both the International Court of Justice in the Hague (‘ICJ’), and in the English Courts.
The book will also explore:
(i) the existence of ‘fiduciary’ duties owed by states under International Law to both their own people and to humanity, i.e. to the international community as a whole – the ‘Dual Commission’ principle; and
(ii) the intersection and nexus between jus cogens and erga omnes under International Humanitarian Law, including the absolute prohibition against genocide.
‘Verdross argued that states bore an imperative duty under international law to undertake certain moral tasks. Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, “overriding principles of international law,” [which in the author’s submission includes a duty by an occupier to protect ancient public monuments located in the occupied territory – subject to the doctrine of military necessity], “may be regarded as constituting principles of international public order (ordre international public). These principles … may be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it statute.” … Kant’s theory of international law ultimately relies on his social contract theory of the state. [The] theory we defend is that the state and its institutions are fiduciaries of the people subject to state power, and therefore a state’s claim to sovereignty, properly understood, relies on its fulfilment of a multifaceted and overarching fiduciary obligation to respect the agency and dignity of the people subject to state power. One of the requirements of this obligation – is compliance with jus cogens. Put another way, the fiduciary principle governs the relationship between the state and its people, and this principle requires the state to comply with peremptory norms. … Fiduciary relations arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power. … The fiduciary’s power is purposive in that it is held or conferred for limited purposes, such as furthering exclusively the equitable interests of a trust’s beneficiary. And finally, the power is institutional in that it must be situated within a legally permissible institution. … The law seeks to dissolve rather than regulate relationships of incorrigible domination. Beneficiaries are particularly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power. … Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remained still in the people a supreme power to remove or alter the legislators, when they find the legislative act contrary to the trust reposed in them. In other words, popular sovereignty denotes that the state sovereign powers belong to the people, and so those powers are held in trust by the rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy the governance of the people. … [It] is an entity’s assumption of state powers, not de jure statehood per se, that triggers the fiduciary principle. Any entity that assumes unilateral administrator power over individuals bears a fiduciary obligation to honour the basic demands of dignity, including the peremptory norms of international jus cogens. … [Implicit] within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law. … Public corruption offends the state subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who … Accepts a petty bride violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression. … Violations of peremptory norms .. are necessarily wrongful and legally impermissible on any scale. …
Legal scholars have traced the fiduciary concept as far back as the Code of Hammurabi in ancient Mesopotamia … and have shown that concepts of fiduciary obligation informs not only Roman law … But also Islamic law. … Indeed, the modern Anglo-American law of trust owes a considerable debt to the waqf from Islamic law – an endowment created by a donor for use by designated beneficiaries and under the administration of the trustee – which was introduced to England by Franciscan friars returning from the Crusades in the 13th century.’ (Criddle, Evan J. & Evan Fox-Decent A Fiduciary Theory of Jus Cogens, The Yale Journal of International Law (2009) Vol 34: 331-387).
States can respond to breaches of obligations ‘erga omnes’ by instituting proceedings in the ICJ. Where under International Law a crime, e.g. genocide is a ‘jus cogens’ violation, there can be no legal justification whatsoever.
So, at trial:
(i) ‘erga omnes’ – which on the factual matrix may arise out of a breach of ‘fiduciary duty’; and
(ii) ‘jus cogens’,
are powerful arguments in discharging the burden proof, because if the other threshold issues including ‘actus reus’ and ‘intent’ are proven, there is no defence.
See also the material assembled at www.diplomaticlawguide.com
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