The following is the text of a speech delivered by Bob Rae, Canada’s Permanent Representative to the United Nations, to the American College of Trial Lawyers on February 25, 2023.
I am very grateful for the chance to join you this morning. Truth be told, my appearances in court have been brief – I have practiced my advocacy in the court of public opinion, whose judgments can be swift and unforgiving, and in parliaments provincial, national, and now international, where the length of the speech is often in inverse proportion to the impact on the listener.
I have not been able to join you earlier this week because of the events at the United Nations marking the first anniversary of the Russian attack on Ukraine, and it is that conflict and its impact on all of us that I want to speak this morning. I know that for many “international law” is a subject too abstract to really consider law at all, but I hope to persuade you that this is not at all the case, and that law at all levels of our society requires our unwavering commitment both as members of the legal profession, and above all as members of the global community.
It is true that international law is often hard to enforce, and that its meaning gets lost in Latin phrases and and political rhetoric. But the rule of law starts from the simple principle that wherever communities exist there must be rules, and those rules must apply to everyone – in the famous phrase “no matter how high ye may be the law is always above you”. For hundreds of years national sovereignty has been limited by treaties signed between states, nation states formally agreed in the nineteenth century to accept that the conduct of wars and the treatment of prisoners and combatants needed to be subject to broader humanitarian principles, and in the last century the growth of rules governing all aspects of international life has grown exponentially.
The creation of the World Court, now the International Court of Justice in The Hague, and in recent years the signing of the Rome Treaty and the establishment of the International Criminal Court, are both critical pillars in the architecture of international law.
Global treaties have been signed on the Law of the Sea, on genocide, torture, climate change, protecting the ozone layer, the rights of children – all reflect a profound common sense that we have build stronger common institutions to face the challenges of our time.
International law is a real thing. Both the United States and Canada have been at the forefront of its development in the modern era.
On January 6, 1941, Franklin Roosevelt delivered his State of the Union Address. Remember that war in Europe and Asia had been going on for some time, my own country, Canada, declared war on Germany in September, 1939, following Hitler’s invasion of Poland. Remember too that that invasion was preceded by accusations that Germany was being threatened by Polish aggression, and that Hitler claimed that Germany’s invasion was “defensive” in nature. Remember too that this invasion was preceded by two agreements that live today in infamy (to borrow an FDR word) – the Munich Agreement of September, 1938, between Britain, France, and Germany, and the Molotov-Ribbentrop Pact of August, 1939, between Germany and the USSR. The first allowed the carve up of a sovereign state, Czechoslovakia. The second was a treaty of friendship and non-aggression, which contained a secret agreement carving up Poland between the Soviets and the Nazis.
Roosevelt knew that the world around him was collapsing in the face of brutal, authoritarian attacks, and Britain by January 1941 stood alone in Europe. Churchill had come to office in May of 1940, and immediately implored the United States to help. Roosevelt’s problem was that both public opinion and the American Congress were dominated by a prevailing isolationism which despised “foreign entanglements”, and he himself had campaigned in 1940 committed to keeping the US out of conflict (just as Woodrow Wilson had done in 1916).
Roosevelt knew that leaders needed followers, and that his task was to persuade the American public that the United States could not abandon those that were fighting for freedom.
The January 6, 1941 speech is often referred to as the “Four Freedoms” speech. In it Roosevelt talked of the central importance of
- Freedom of Speech
- Freedom of worship
- Freedom from fear
- Freedom from want
These were not just freedoms for Americans, they were freedoms of all people. It was a bold vision. It put him at odds with the isolationists of his day, just as the idea of universal principles puts it at odds with the narrow nationalisms of our time.
Six months later Franklin Roosevelt and Winston Churchill met off the coast of Newfoundland. They had twin purposes – Churchill needed the US to enter the war, Roosevelt needed Churchill to become more of a democrat and embrace his global vision of a democratic order after the conflict. The result was the Atlantic Charter, which is in reality the basis of both the UN Charter and the Universal Declaration of Human Rights which was proclaimed in 1948, 75 years ago.
Those principles were:
- no territorial changes made against the wishes of the people
- Self government as a defining principle of the new order, replacing the colonialism of the past
- Freer trade and freedom of the seas
- More co-operation to improve the global economy
- Disarmament of aggressor nations and rejection of force as the basis to settle disputes
To put it simply – we fought the Second World War to stop the kind of aggression that Russia began a year ago.
Our modern international legal architecture would not have existed without both Roosevelt’s vision and American leadership. The challenges we face today require a renewal of that commitment and leadership. The world cannot afford an America turned in on itself.
The global challenges we face – conflict, aggression, lies, disinformation, climate change, deep poverty and growing inequality, the ongoing presence and threat of pandemics and other health challenges – cannot be met by the nation state alone. While action at the local and national level is of course essential in achieving success in the effort to combat these global realities, they are insufficient, and will only work if accompanied by joined up action.
The main flaw in the laws and treaties that exist is that their enforcement is weak and uneven. The principal enemy of enforcement is insistence by many countries that somehow they are different or exceptional, that the rules do not apply to them. This is the heart of our current challenge.
In his opening address to the International Military Tribunal at Nuremberg Justice Robert Jackson spoke these compelling words in 1945:
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”
What we now call crimes against humanity are set out in the Rome Treaty, which has been ratified by 123 countries, but this number does not include Russia, Ukraine, China, India, Egypt, Israel, Saudi Arabia, and…the United States of America, as well as over 60 other countries.
Nuremberg focused rightly on the crimes of aggression and what became known as genocide. Special tribunals have been created to deal with deliberate infringements of human rights since then, and the International Court of Justice is now dealing with two applications under the Genocide Convention, one dealing with Myanmar and the Rohingya and the other with Ukraine.
The International Court of Justice has already made critical preliminary findings on both Myanmar and Ukraine. On Myanmar, that there is evidence to proceed on the charge of genocide against the Rohingya, and on Ukraine, that Russia must withdraw its troops as the pretext of their invasion – that the claim that Ukraine itself was committing a genocide in the eastern part of the country against Russian speakers had no merit.
In addition the ICC is seized with the terrible abuses committed by Russia in Ukraine, and its investigations are being supported by a great many countries – including the United States. There are now calls for a Special Tribunal to deal specifically with the crime of aggression. What precise form this will take, and how it will connect with the many investigations, reports, under way, and the potential trials to which they could give rise, remains to be seen. But the principle that Mr Justice Jackson stated in 1945 remains true: great crimes of global impact must be met with the full force of the law. This is the point that Vice President Harris made very recently – when children are stolen away, when sexual violence is used as a tool of war, when soldiers are tortured, when the innocent are killed in the thousands – we cannot turn away.
There is overwhelming evidence that Russia and its leaders are responsible for great crimes. The Charter of the UN sets out clearly that an aggressive attack by one nation state against another is a fundamental breach of the Charter. There should be no surprise in that: the UN was created, in the words of the preamble, “to save future generations from the scourge of war”, in the immediate aftermath of the bloody conflicts of World War II. The first war crime is starting a war. There is overwhelming evidence that this is precisely what Russia has done, and further waged it in a way that has led to thousands of civilian deaths, torture, and destroyed hospitals, schools, power plants and infrastructure. As President Putin was speaking earlier this week saying that Russia was not at war with the people of Ukraine, his missiles were raining down on Kherson, killing innocent children and destroying homes.
Among my responsibilities as Canada’s representative to the UN is that I serve as the Vice President of the Assembly of States Parties of the International Criminal Court. The Prosecutor of the Court, Karim Khan, is leading an extensive investigation into potential war crimes. As a member of the Rome Treaty, Canada pays dues to the Court, is eligible for election to it (we currently have a judge sitting on the Court) and actively participates in its governance. The Court currently faces a shortage of resources, but it is active, busy, and, together with both the special tribunals that have been created, as well as the work of the International Court of Justice, is steadily creating a jurisprudence that extends the rule of law to include not just “little people” but also those responsible for great crimes of global impact.
President Clinton signed the Rome Treaty, but that decision has not been followed by ratification in the United States Senate. That is deeply regrettable. Again, history reminds us of the consequences of the absence of the United States from the organization that Woodrow Wilson helped to found in 1919 – the League of Nations.
Canada’s commitment to the rule of law is based on both values and self interest. Together with a great many other countries, we have learned the hard way that collective security is essential for our individual freedoms, and that we have to rely on mutually agreed and effectively enforced rules to advance our interests. There is no other path for us. For example, in trade disputes between Canada and the United States we require and need effective tools of mediation and arbitration to ensure that your might does not always make right. And in agreeing to an effective regime under NAFTA and its successors the United States preserves its interests as well.
Canadians have a special sense of pride that in celebrating the 75th anniversary of the Universal Declaration of Human Rights we remember a Canadian legal scholar, John Humphrey who as an international civil servant of the United Nations in the 1940’s ‘held the pen’ in the drafting of this document. The ethical foundation of that document is the same as that expressed by Franklin Roosevelt in 1941, that human rights are not a product of one legal or cultural tradition or another, but can be found in what it means to share both our common humanity and the reality that that morality itself is based on the principle that freedom and dignity require mutual respect and the recognition that the pursuit of selfish ego on its own leads not to civilization but to its destruction.
Russia’s assault is not only on Ukraine. It is against the rule of law, treaties and agreements that Russia has voluntarily signed, and as a Permanent Member of the Security Council has agreed to uphold. Russia’s use of the veto at the Security Council has emasculated that part of the United Nations, forcing us to create other ways to respond to this crisis.
The consequences of Russia’s behaviour are felt all over the world – higher inflation and food costs, limiting the supply of energy and food to the poorest countries and people in the world, costing the global economy nearly 3 trillion dollars. This havoc in turn has forced millions of Ukrainians to leave their homes, and many others around the world to also seek refuge. There are now over a hundred million people in the world forcibly displaced, the greatest number the world has known since we began keeping statistics.
The means we use to communicate and share information are being flooded with lies and hate at a pace and level that is completely unprecedented. Conspiracy theories, anti-semitism, misogyny, phobias and hatreds of all kinds are spreading at the speed of sound, and being amplified and magnified in ways that Goebbels could only dream of. The ugliness of political debate has never been greater, and the cowards of hate hide behind pseudonyms as they enter the brawl of social media.
Armed with guns as well as megaphones, the perpetrators of unrest and chaos take many different forms in many different societies.
But despair in the face of all this is not an option. The only path that will work is to commit ourselves to reason, law, civility, and, yes, enforcement. The remedy for disorder is order. Not an order based on repression or dictatorship, but on the rule of law itself, recognizing that the common good of humanity demands no less.
This is not a pipe dream, because it is based on the simple premise that our self interest and our values align at this “sweet spot”, this place where our freedoms and our survival require us to dedicate ourselves to the rule of law not just in our own cities and towns and countries, but in a world that cannot be alien or foreign to us because it touches us all so closely, and above all because it reflects our common humanity.