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As a lawyer working in and later teaching within the humanitarian world, I often noticed misconceptions, illusions and therefore frustrations among humanitarians on what law is and how it interacts with reality. Indeed, law is useless both when it only describes reality and when it goes too far beyond reality, merely describing an ideal.
Law consists of a system of rules of conduct and organisation in force in a certain community. Its precise definition and to what extent it includes rules not adopted by a recognisable legislator and whose violations are not regularly sanctioned are a matter of longstanding debate. Law and jurisprudence are distinct but related concepts. Scholars of jurisprudence seek to explain what law is; how legal reasoning and legal systems and institutions work; and the role of law in society. Scholars of law seek to explore the content of the rules, their relationship, and their enforcement. What is legal and what is just are also distinct, though interrelated questions. Most law aims at justice, not all law is just, not all solutions considered by one individual as just are lawful, but to solve issues according to the law, the rule of law, rather than arbitrary decision of even the most justice seeking decision-maker has its own value.
For humanitarians, law is an opportunity and an obstacle. International humanitarian law, human rights, and disaster law, empower them as well as, more importantly, the persons affected by situations requiring humanitarian action. Those very same branches of international law also regulate and may limit humanitarian action. Not everything a humanitarian professional wants to do in good faith is lawful and not everything (but most of what is) required from a humanitarian point of view from states, international organisations, businesses, armed groups and individuals is legally required. Humanitarians may benefit from certain privileges and immunities under international law (mostly if they work for states or intergovernmental organisations), which facilitate their work but also deprives affected people of some remedies against them. Even when they benefit from such immunities, humanitarians are bound by domestic laws of the state where they work. Immunities are simply an obstacle to the enforcement of such laws against them.
Humanitarians often see domestic law of the state where humanitarian action is undertaken as a constraint. Expatriates often do not know domestic laws and both they and humanitarians who are nationals of the affected state often consider that state as illegitimate, inefficient or governed by particular interests. However it would often be more appropriate if they used domestic law as they use international law: as an opportunity to facilitate their action and to empower affected populations. Most of the time, for example, domestic law equally prohibits discrimination or requires that people must have access to water, food or education. Not to invoke such domestic laws is a missed opportunity and opens doors up to discussions about cultural relativism, outside interference and claims that international law reflects power interests.
It is often difficult to distinguish law consisting of bureaucratic red tape or law that is meant to impede or manipulate humanitarian action from legislation pursuing legitimate aims (such as employment, social security and land planning laws). Such legislation is legitimate in that it applies to everyone, but inevitably it also constrains humanitarian action, including when not adapted to humanitarian emergency situations. It makes it more difficult to hire staff, to import goods, to build a camp, or to rent offices. Hardly ever do such laws foresee an exception in emergency situations and a humanitarian emergency is no general justification for not complying with the law. Even when domestic laws are genuinely inappropriate, this generally does not make conduct contrary to these laws lawful, neither under domestic nor under international law. International law is the grammar of international relations, of which humanitarian action is a part. It contains rules for international relations and allows participants in international relations to set up aims. Just as the grammar in any language allows the expression of ideas, international law is a vehicle to pursue interests, aims and ideals. However, it also limits the available arguments in international relations. No state can, for instance, claim that a new government is not bound by legal obligations undertaken by the previous government.
International law requires that it prevails over domestic law, but this is not the case in (nor required by international law from) all domestic legal systems. Anyway, humanitarians and affected persons usually have no remedy to make international law prevail over domestic laws. Although the concept of law entails responsibility for and sanctions of violations, most violations of most legal rules are not regularly sanctioned. This is particularly true for international law, which lacks systems of regular adjudication and enforcement independently of political realities and expediency simply because states that adopt international law do not want them. Arguably, this also what most peoples and public opinion do not want. Most people want a state – this is one of the results of the right to self-determination of peoples - but few want a world state (which would be necessary to enforce international law in a similar way to domestic law). International law is law, but it lacks a regular legislator (that could adopt rules against the wishes of those to be bound), a regular court (before which a party to a dispute could bring it without the consent of the other party) and, most importantly, police, i.e. a centralised enforcement system.
Non-lawyers often forget that domestic laws differ from state to state and that most of those differences are legitimate and lawful under international law. While an agronomist can work in every country of the world, a lawyer can only work in a few countries, the legal system of which he or she studied. Non-lawyers often also think that law is much less flexible than it actually is. It is possible to find legal arguments for nearly every humanitarian proposition. Nearly all reasonable choices are lawful, although the way to achieve them must often be adapted to what the law says. However, this also means that in most discussions both sides can bring forward good faith legal arguments. It is rare that law, in particular international law that is only rarely adjudicated by a regular court, provides a singular answer to a social question. Most of the time, even when only one interpretation is correct (which is the theoretical ideal lawyers fight for) law gives social actors options. Few rules are imperative (in international law they are referred to as 'jus cogens rules') and do not allow those concerned to agree otherwise, which does not mean that such non imperative rules are less binding when no contrary agreement exists.
Furthermore, it is increasingly argued and accepted, in particular in international law, that there is a spectrum of normativity. A rule does not simply exist or not. Even the hardest rule of a constitution, the criminal code, or of an international treaty can be violated and most violations are not sanctioned. Even 'soft law' rules, traditionally called non binding, such as professional standards or UN General Assembly resolutions, impact on the conduct of addressees. Those concerned negotiate them intensely, which is evidence that they believe in their impact, and such soft law is regularly invoked in legal discussions.
The main advantage of law in discussions of humanitarian issues is that it makes solutions relatively more objective and less dependent on the feelings, ideals, interests and culture of the participant. Its main disadvantage is that it can never keep up with the full variety of real life situations and interests and with the speed of social developments – otherwise it would loose its normative force, which is its main property. Law must change and adapt to social reality, but it cannot constantly change and adapt to each situation to which it is supposed to apply. Otherwise the conduct it requires would not be foreseeable and the 'rule' therefore useless.
Marco Sassòli is professor of international law at the University of Geneva and member of the board of the Geneva Centre of Humanitarian Studies
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