Vol. 1, No. 19 (November 1, 2008)

Introduction: Why international law

Guglielmo Verdirame, Dr.
Lecturer in Public International Law
University of Cambridge

The summer of 2008 will go down in history as a turning point in international relations – as momentous as the attacks of 9/11, or even as the fall of the Berlin Wall in 1989.  Russia ended its period of long retreat and asserted her power over a much weaker neighbor.  A few weeks later, Western states were forced to take on a level of public debt not seen since the end of World War II in order to save their financial systems from collapse.  It is too soon to tell what the political, economic and strategic repercussions of these events will be in the long term, but a tentative assessment can be advanced.
The era of the sole superpower – assuming it ever existed – is over.  True, the incompetence of the Bush administration may well be undone by its successor, and Russia may end up regretting its summer adventure now that its political and economic costs are becoming more obvious.  But economic reality has now caught up with the US and the West.  Those who went on arguing that the ideas of economists in Chicago had changed the economy forever; that the US economy would remain the strongest despite the loss in manufacturing power and the huge trade deficit; that financial power alone would sustain American economy primacy; that weaknesses in manufacturing and trade would not sooner or later bear on its financial position; well, they have been proven dramatically wrong, as investors the world over are, for the first time, considering a run on the dollar, and as American financial dependence on foreign capital has now reached levels not seen by a world superpower since the British Empire in its dying days.  That crisis should follow hubris has its logic too. 
It would be a mistake to assume that the US, and the West, are now irreversibly on the path to decline; the US in particular has proven its pessimists wrong more than once.  But it is probably safe to prepare oneself for a different world in the next decade from the one we have known in the last. 
Why – one may ask – these general considerations to introduce a discussion on international law?
The theoretical answer is that context is always relevant to law: it guides its present interpretation and application, and shapes its future course – more so in the case of international law.
The practical answer is that, in a world characterized of shifting power relations, inter-state conflicts are ever more likely to end up before international institutions, courts or tribunals.  Suffice it to look at the aftermath of the Georgian-Russian war: proceedings were brought in the International Court of Justice and in the European Court of Human Rights, and a request to open an investigation was made in the International Criminal Court.  Both sides have hired their peaceful armies of lawyers to advise, and to prepare and argue these cases.  The statement that the laws fall mute in the midst of war is no longer true – if it ever was. 
States like Azerbaijan, facing protracted and unresolved conflicts and threats to their territorial integrity, can only ignore international law to their peril.  Even powerful countries like the US have had to come to terms with the costs of the illusion of a rapid military solution to a conflict.  For small countries with powerful neighbors – as the Georgian case shows – that illusion can beget tragic strategic mistakes.  No one is suggesting that international law can offer an easy and rapid solution, but, strategically, it can provide a more effective way of managing a long-term dispute.  Indeed, many such disputes have been the object of extensive litigation, the Cyprus question for example on various aspects of which the European Court of Human Rights and, more recently, English courts have been called to rule. 
One lesson that states should have learned by now is that, notwithstanding the weaknesses in the enforcement of international law, the rulings, indictments or convictions of international courts and tribunals are here to stay.  The political and diplomatic processes will take their course – as they should for solutions can only come from politics – but will seldom, if ever, negate those pronouncements.  It is therefore better to participate actively in these proceedings and to put one’s best case forward, whether as claimant or respondent; and it is certainly wise for states to equip themselves to devise a legal strategy for managing their disputes.  Many already do so.  Those that do not put themselves at a disadvantage.
The recent financial turmoil will also inevitably lead to litigation, not only between private companies but also between states, and between companies and states.  The United Kingdom has already threatened legal action against Iceland.  Having embarked upon so many nationalizations, Western countries now risk being sued by foreign investors under investment treaties, which they originally concluded to protect their own investments against the risk of expropriation, discrimination and unfair treatment abroad. 
Azerbaijan is both a recipient of foreign investments and the country of nationality of foreign investors.  It has concluded bilateral investment treaties with various countries, including the USA, the UK, Germany and France, and is being sued by some foreign investors in the International Centre for the Settlement of Investment Disputes.  The same treaties can however also be relied upon to protect Azerbaijani investments abroad – an important objective for a country with a sovereign wealth fund steadily growing in size. 
The pieces that follow have to be read against this short analysis of the background.  They analyze three aspects of international law and litigation of great relevance to Azerbaijani foreign policy and diplomacy: the question of the independence of Kosovo, on which the International Court of Justice will soon advise; the law on recognition of states and governments, which is central to many international disputes; and the conduct of proceedings in the European Court of Human Rights.  It is not by any means an exhaustive list of relevant international law questions, but only a tastings menu on the subject.  The authors are extremely distinguished scholars and practitioners in the field.