The challenges to international law in the 21st century.

Author:Jeria, Michelle Bachelet
Position:Eighteenth Annual Grotius Lecture - Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This lecture began at 4:30 p.m., Wednesday, March 30, 2016, and was given by Michelle Bachelet Jeria, President of the Republic of Chile, who delivered the 2016 Grotius Lecture; the discussant was Margaret McKeown, Judge for the U.S. Court of Appeals for the Ninth Circuit.

THE CHALLENGES TO INTERNATIONAL LAW IN THE 21ST CENTURY

By Michelle Bachelet Jeria *

I am honored to be here as the 18th Grotius lecturer, marking the launch of the American Society of International Law's (ASIL) 110th annual meeting. This lecture series, the product of a creative joint venture between ASIL and the American University Washington College of Law (AUWCL), is a privileged opportunity to reflect upon the shifting frontiers in the world and in law, and to promote new ways of thinking about the challenges that the current global situation presents to us.

I am grateful to be offered this opportunity and I want to personally thank the partner institutions that have conceived and organized these Grotius lectures: the ASIL, represented here today by its President Lori Fisler Damrosch, and its Executive Director Mark David Agrast; and the AUWCL, represented today by its Dean, Claudio Grossman.

The title of this year's ASIL annual meeting is "New Frontiers in International Law." The title itself reveals the intent to explore, discover, question, and analyze where we are with international law; what are the challenges; how to address what lies before us; and how we can do this on the basis of the norms, principles, and institutions that constitute international law.

Let me now offer a few reflections of my own on the new frontiers of international cooperation. I am not a lawyer; I am a physician, but there is hardly an issue in my public life that has lacked a legal dimension, in my responsibilities as a minister of State, President of the Republic of Chile, and as a former Executive Secretary of UN Women.

My comments reflect my own experience in these positions of responsibility, as well as the experiences of my own country, rejecting dictatorship, rebuilding institutions in a fractured society, addressing the need to achieve a nation that provides equal opportunities and access to justice for all; institutionalizing solidarity for the weak, the poor, and the elderly not only as a matter of charity, but also as a valid and legitimate expectation solidly grounded in the legal culture.

I do not use the word "legitimate" lightly, and as President of Chile I am very much aware that legitimacy, in particular democratic legitimacy, is essential in decision-making.

I do not need to dwell much on the concept of legitimacy in this knowledgeable group. It is enough to mention the important contribution by the late Thomas Frank, identifying the actors, the processes, and the results that constitute legitimate decision-making.

Central to a prosperous world is ensuring peace and security. These concepts are embodied in the Charter of the United Nations. But these universal commitments to peace and security, so foundational to the collective enterprise that is the United Nations, continue to prove difficult to achieve.

Today there are more than fifteen conflicts of different intensity in the world that have resulted in hundreds of thousands of deaths per year. We are also seeing that today's conflicts are less likely to be only between sovereign entities--they now include highly militarized terrorist groups and other non-State actors. (1) These non-State actors present new challenges militarily, but also challenge the rule of law--as they seem particularly unencumbered by the rules of humanitarian law in times of armed conflict.

International humanitarian law subjects the conduct of military operations to strict rules, protecting those who do not take part in hostilities. No just cause can justify violating these international norms of behavior; no just cause can justify terrorism. We see the tremendous consequences of the lack of compliance with the fundamental humanitarian values that place limits on the actions of states, no matter what sort of exceptional justification they invoke.

Our failure to maintain collective security, particularly when many combatants ignore the rules of international humanitarian law, has resulted in huge humanitarian crises. Every day the millions of refugees and people forcibly displaced grow in huge numbers.

There cannot be a more powerful metaphor for the global refugee crisis than that of the body of the child that was washed up on the shores of the Mediterranean. We saw in that poignant photograph the death of a young boy, but also the loss of the potential promise of a whole generation and the unacceptable failure of all of us collectively to prevent such tragedy.

More than 20,000 children have been killed in Syria alone, and many more raped and tortured. More than 2 million children have been forced to leave their homes due to the current existing conflicts and UN sources suggest that more than 2.1 million children are out of school in Syria alone. (2)

As a world community, we need to do much more to assist the victims, to mobilize the international community, and to alleviate the consequences of these conflicts. We should not accept what we are witnessing as something "normal."

The refugee and illegal migration problem is global, but our responses tend to be national and, worse, local. We are lacking an adequate global governance to deal with global humanitarian crises. The UN institutions do what they can, but they are overwhelmed and underfinanced; and they cannot deal with interdependence challenges when the logic of international organizations is member-state based. International relations are stubbornly state-centered as power continues to spread and globalization deepens. Hence, both at the global and national level, we witness a collapse of authority.

There is also lack of funding and insufficient coordination between institutions involved in humanitarian emergencies, including between the UN and NGOs. Moreover, there is a tendency to think about humanitarian emergencies only after they have erupted, instead of building resilience in advance. For governments and tax payers it becomes easier to justify funding refugees than to finance preventive efforts. Early warning and preventive initiatives are necessary.

Latin Americans sympathize with displaced and forced migrants. The wave of dictatorships in the 70s and 80s led to the exile of thousands of our own. In Central America, crime, drug-trafficking, natural disasters, and violence force the migration of hundreds of thousands moving toward the United States, with women and unaccompanied minors becoming a growing number in this phenomenon.

But Latin America also contributed to the mitigation of some of the worst crises in the past. Thousands of Spanish, Portuguese, Italian, and other European citizens escaping dictatorship and fleeing war and repression in Europe benefited from open door policies in Latin America. Our region also received large numbers of Arab and Jewish immigrants, whose descendants are an integral and successful part of our societies. There are more citizens of Lebanese origin in Brazil than in Lebanon. The largest Palestinian community outside the Middle East can be found in Chile.

I appreciate the efforts many countries are making to welcome and support refugees, but we must all do our share collectively and as individual nations. This is why my Government has decided to take in refugees from the civil war in Syria and is working with UNHCR to find the resources to receive refugee families in our country, at the earliest possible date. This is also why, as I announced in my speech before the General Assembly in September 2015, Chile will increase its participation in UN peacekeeping operations, including in Africa.

The reasons for our continued inability to achieve peace and security are many, among others: lack of agreement in a Security Council that requires reform; the rise of new actors that do not feel that they are bound by the norms of the use of force; and the expansive interpretation of the norms on self-defense.

We will insist on the need to comply with and to update the norms laid down in the Charter of the United Nations in International Humanitarian Law and in the achievement of collective security.

But we need to address conflict from a broader view of peace and security.

In this connection, I highlight and share the opinion of UN Secretary-General Ban Kimoon, who said last September that, "Over the longer term, the biggest threat to terrorists is not the power of missiles. It is the politics of inclusion.... It is education, jobs and real opportunities." (3) We need a serious effort to promote inclusive and sustainable development as the most effective tool for preventing future conflict, for building peace, for consolidating democracy and the rule of law, for safeguarding individual freedoms and, ultimately, for enabling all people to live a life of dignity and productivity in a fair society.

I have addressed the Security Council on the need to highlight the relevance of the goals of inclusive development to address conflicts and to consolidate peace once it is secured.

The development issues confronting the world are serious and require collective action. Access to good schools, healthcare, electricity, safe water, and other critical services remains elusive for many people, often determined by socioeconomic status, gender, ethnicity, and geography.

Runaway inequality has created a world where sixty-two people own as much as the poorest half of the world's population. In accordance to a recent Oxfam Report, half of the World's Wealth is now in hands of 1 percent of the population. The wealth of the poorest half of the world's population, 3.6 billion people, has fallen by a trillion dollars since 2010. This drop has occurred despite the global population increasing by around 400 million people during that...

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