Why following the rules when nobody is seeing? What makes someone restrain their own actions to society’s sake? These are few questions that most people may face inconsciently on a daily basis. The moral aspects inside our minds can be varied due our previous experiences in life and, definitely, depends on the kind of education we had.

However, I beg you to spotlight the difference between a self-ruled organized society and an unorganized disrespectful one where rules have not much efficacy. Is, for instance, Sweden’s soil that naturally shapes individuals’ actions turning them susceptible to respect both social and legal regulations? Certainly not.

The recent Lutheran reformation through its extremism affected the Nordic countries’ organization permitting them to rose somehow a high level of social awareness, trust and transparency. The absence of surveillance and repression does not seem an opportunity to act against those values and neither appears as a barrier to collectivism.

As a matter of fact, the corruption perception in these countries turns out to be the lowest in the world, reflecting on how people also see the government, after all, the institutions are made by the very same trustworthy individuals with sense of collectivism. Summing up, when a group of persons trust among themselves to comply with moral and legal rules, the respect to the social contract is expected, once the group’s values prevent – in most cases – a reproved action. Pacta sunt servanda. Once said William Burroughs: “The aim of education is the knowledge, not of facts, but of values”. When education teaches values, it allows individuals to comprehend the essence of welfare. That is the main difference between education and instruction, but that is a topic to another occasion.

Bearing in mind that well shared social values are important to prevent misconduct is a vital concept. Albeit, this advanced level of consciousness is a far-fetched reality to most countries in the planet. The lack of a solid moral background establishes the proper conditions to act only regarding your own convenience and this might explain the dilemma on facing daily traffic’s code violations, tax evasion, peculation, bribery and so on (i.e., transgressions). Michel Foucault’s studies on Microphysics of Power show how each individual action in the exercise of power influence the whole system unctioning.

As a result, it will be necessary the presence of constant surveillance and punishment to prevent immoral or illegal conducts, which would outweigh the self- benefits of acting against the social contract. The Panopticon. Although, this absence of collective awareness has a problematic outcome: whenever surveillance and/or punishment are not present, the obligation to follow the rules is perceived as not to be mandatory and nothing can restrain acts against it, not even a bond. In the same manner, surprisingly, the attachment of punishment to accomplish good behaviors, overlooking the importance of values itself, can even be softly observed in parental education in which the acting with emotional blackmail turns out to be often used in order to achieve an expected behaving compliance: “either you do your homework or you won’t travel”, “either you eat well or you won’t go to your friend’s house”, instead of explaining and sharing properly the benefits of education or health care. Discipline and Punish.

Beyond this analysis, there is an important piece of information: in our society, a mindset which interprets punishment as a necessary indicator to determine the mandatory feature of a rule is shared (punitive education). Hence, if there isn’t any current applicable sanction to a rule’s infringement, should it then not be followed? Is punishment a pre-requisite to the rule of law? No. If there is a legal rule it is because pre-exists a pactum in force, which is binding and fundamental to legal security.

According to Professor Bin Cheng, pacta sunt servanda is “(…) an expression of the principle of good faith, which above all signifies the keeping of faith, the pledged faith of nations as well as that of individuals” . The principle of good faith performs a substantial role to any contract, which allows society to work coordinately, hence, achieving an expected result faster. Clearly, the commitment further results in obligations and onus to the parts, but aiming to accomplish a bigger goal. Does not matter whether there is a sanction or not to the contrary action, the contract and the rule of law still exist and it is binding under the concept of pacta sunt servanda or “agreements must be kept”. Without trust between parts, the existence of contracts in communities would be deeply jeopardized. Unfortunately, the misunderstanding on how the rule of law should be treated regarding its severity reflects on how some students, professors or even States treat International

Law itself and transnational agreements, that not always will bring consequences to a non-compliance but putting at stake fundamental rights. The transnational law has the human being as core subject to its existence and leads to humanity progress as it enacts into law the principles of economic development and international justice, peace and security.

Precisely, the modern International Law is characterized by the recognition of shared values among the international society members which will determine common interests and further formulate rules 2. This can also be observed in the preamble of the United Nations Charter, where values are fixed to guide international relations: “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom”.

The only way to sustain a globalized society is through global coordinated action and, to prevent any sort of non-compliance with the preceding values is that treaties, pacts, agreements, i.e., contracts, are made and delivered to the international community with the purpose of creating legal security by means of solidifying laces and obligations.

Once the State exercises its sovereignty to voluntarily restrain your range of actions in order to stand for an international commitment, the presence of sanctions is just a detail. Distinguished authors, such as Georg Jellinek – with the self-limitation theory –, Heinrich Triepel – the collective will, Vereinbarung – and Louis Le Fur – the limitation to the will of States, guided by the notion of the common good of the international community – support this premise and may eventually clarify any misconception. Either the contract configures itself as soft law or hard law; it is still a pact that must be kept.

To this end, the Vienna Convention on the law of treaties which was concluded in 1969 is a valuable document that permitted to unify the procedures relating to international pacts and regulate the States’ conducts regarding the treaties. In addition, its articles 26 and 27 validate the mandatory feature and the supremacy of the international rule:

“Article 26. ‘PACTA SUNT SERVANDA’ Every treaty in force is binding upon the parties to it and must be     performed by them in good faith.

Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIES A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Therefore, every State must stand for what was agreed; not because it may be demanded for that, but by virtue of the commitment made voluntarily with the international community, especially for the ones which ratified the Convention on the law of treaties.

The absence of punition must not be an opportunity to disrespect the binding conventions. An international agreement is the formal liaison among State actors, persons and International Organizations and its not compliance threatens the legal security at an international level. Differently from the domestic laws, transnational laws are only mandatory when the international actor subjects itself to it, unless it is a peremptory norm (jus cogens), and this very same voluntarism is what actually binds.

Nevertheless, we shall not be naïve and realize the undeniable political tension that exists on an international order where the breaking of diplomatic relations, even not expressly included on the contract, can fit as a sanction. Thus, it is a fallacy to sustain that the International Law is not effective when it does not show applicable sanctions to misconduct.

It is foreseeable the reason why some individuals and State actors may not comprehend the motive of giving preference to international rules instead of their own convenience when they might not even answer legally for that as a consequence of a background built with the pillars of the culture of punishment. However, it does not explain nor permits the non-compliance with the rules, once the disrespect of the treaty put at risk the accomplishment of the international contract. Moreover, when the State is no longer interested on the pact or cannot stand for it anymore this actor is able to denounce thetreaty 3 , not harming the legal security neither the pact’s objective. International Law is made by humans and for humans, seeking international cooperation and development. It is necessary to comply with the rules when it comes to law, disregarding any personal convenience to enable welfare and good living in society. On this matter, no individual, corporation nor State can use their own interests to avoid the rule of international law. We shall all learn then with the Swedish how to dismiss the necessity of sanctions andconstant supervision to respect what has been agreed to finally enjoy the benefits of progress.

References:

United Nations Treaty Collections. (2017). The Vienna Convention on the Law of Treaties. [online] Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I- 18232-English.pdf [Accessed 2 Feb. 2017].

United Nations Treaty Collections. (2017). Charter of the United Nations. [online] Available at: https://treaties.un.org/doc/publication/ctc/uncharter.pdf [Accessed 2 Feb. 2017].

University of Warwick. (2017). Michel Foucault’s Discipline and Punish: The Birth of the Prison Reader/Workbook. [online] Available at: http://www2.warwick.ac.uk/fac/arts/english/currentstudents/undergraduate/modules/fulllist
/second/en229/marxfctintros_/foucault_reader.pdf [Accessed 3 Feb. 2017].

Quaestio Iuris. (2017). The contribution of Louis Le Fur to the internationalistc Neo-Natural Law. [online] Available at: http://www.e- publicacoes.uerj.br/index.php/quaestioiuris/article/view/15349 [Accessed 2 Feb. 2017].

CARREAU, Dominique; BICHARA, Jahyr-Philippe. Direito Internacional. Lumen Juris, 2015;

SPIERMANN, Ole. International Legal Argument in the Permanent Court of International Justice. Cambridge Press, 2005.

 

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Mota

Pedro Mota is an undergraduate law student enrolled in Universidade Federal do Rio Grande do Norte, Secretary-General in Núcleo de Pesquisas em Direito Internacional –NUPEDI – and an associate in Academia Nacional de Estudos Transnacionais – ANET.
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