The existence of international rules as a system of law

The most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law. States believe international law exists. When Iraq invaded Kuwait in 1990, or earlier when Tanzania invaded Uganda in 1978/79, the great majority of states regarded the action as 'unlawful', not merely 'immoral' or 'unacceptable'. The same is true of the war crimes committed in Bosnia and Rwanda, and this is given concrete form when the United Nations Security Council imposes sanctions on a delinquent state, as with the embargoes on Libya (now lifted) following the Lockerbie bombing. The criticism of the US-led invasion of Iraq in March 2003 and of Israel's forceful intervention in Lebanon in July 2006 followed a similar pattern, both being cast by a majority of the international community as a violation of law, not merely as unethical, immoral or undesirable. Similarly, those arguing in support of these uses of force do not dismiss inter­national law as irrelevant or voluntary, but seek instead to justify the invasions as lawful under the legal rules concerning collective security and self-defence. In other words, even the international actors who engage in potentially unlawful activity do not deny the relevance of international law or its prescriptive quality. This accept­ance of the reality of international law by the very persons to whom it is addressed exposes the weakness of those who argue that international law does not exist. Of course, this does not answer questions about its effectiveness, nor does it settle whether it is 'law' in the same sense as that of the UK or of other states. Yet, it does reflect accurately the reality of international relations. How then do we know that states believe that there is a set of rules binding on them as law? What evidence is there of this 'law habit'?

(a) International law is practised on a daily basis in the foreign Offices, national courts and other governmental organs of states, as well as in international organ­isations such as the United Nations and the Organisation of American States. Foreign Offices have legal departments whose task is to advise on questions of inter­national law and to assist in the drafting of international agreements and the like. National courts are frequently concerned with substantive questions of inter­national law, as with the series of Pinochet cases in the UK concerning questions of immunity and human rights (R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No. 3) [1999] 2 All ER 97) and the House of Lords judgment in R v Jones [2006] 2 WLR 772 concerning the meaning of the international crime of aggression and its impact on domestic law. In reading the judgment of Lord Bingham in that case, no-one could doubt the legal validity of the system of inter­national law. Similarly, international organisations, in all their forms, use lawyers, employing the language of the law, to conduct their everyday business. These organisations and their state-members accept that they are 'legally bound' to behave in a certain way and will pursue claims against each other alleging a 'breach' of international law.

(b) It is a fact of the utmost significance that states - still the most important of the subjects of international law - do not claim that they are above the law or that international law does not bind them. When Iraq invaded Kuwait it did not-claim

The nature of international law and the international system

that the law prohibiting armed force did not apply to it or was irrelevant. Rather, Iraq argued that international law 'justified' its action; in other words, that it was 'legal' by reference to some other rule of international law. Likewise, in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia & Montenegro) ICJ 2007, Serbia did not deny the existence of rules of law concerning genocide, but contended rather that it was not internationally responsible for the violations of international law that had taken place. In fact there is no modern day example of a state claiming that it is not bound by general rules of international law, although there is often a great deal of debate as to the precise obligations imposed by that law (as in the Bosnia Serbia Genocide Case where there was argument over the precise obligations imposed by the Genocide Convention). This is powerful evidence that states follow rules of international law as a matter of obligation, not simply as a matter of choice or morality. If this were not so, there would be no need for states to justify their action in legal terms when they departed from a legal norm.

(c) The most convincing evidence of the existence of international law is that the overwhelming majority of international legal rules are consistently obeyed. Of course, there will be occasions when the law is ignored or flouted, just as there will be murder and theft in national law. Indeed, the apparent ineffectiveness of inter­national law stems from the fact that it is the occasions of law-breaking that receive the most publicity. Some of the modern day and notorious failures of international law, such as the US invasion of Grenada in 1983, the genocide of the Kurds at the hands of the Iraqis and the invasions of Afghanistan, Iraq and Lebanon in pursuit of 'the war on terrorism' are not representative of the whole. Outside of the excep­tional cases, the everyday operation of international law goes on in a smooth and uninterrupted fashion. The occasions when a state disregards its treaty or custom­ary law obligations are but a small fraction of the occasions on which those obliga­tions are observed. The same is true of the law of diplomatic immunities, state responsibility and the law of the sea. In short, the vast majority of the rules of inter­national law are obeyed most of the time. Such observance is not headline news.

(d) It is a function of all legal systems to resolve disputed questions of fact and law. International law has to do this and, because it has only a limited number of developed legal institutions, it sometimes fails. That, however, is no reason to doubt its validity as a system of law. Rather, it suggests that i/Tnternational law is to be on a par with national law, it needs to develop better institutions responsible for law creation and enforcement. In comparison with national law, international law may be regarded as 'weak' law, not because of its binding quality, but because of its less organised approach to the problems of adjudication and enforcement. On the other hand, it has been suggested above that the existence of such institutions is a feature of national law that may be out of place in an international system, or at least not merited to the same degree. For example, given that international law regulates the conduct of legal equals, it might be unwise to have a formal and coer­cive process of law enforcement. All states are powerful in some measure and all have the practical ability to inflict harm on each other whether that be economic, political or military. With such a reality, it may be that the best way to regulate state conduct is to proceed on the basis of a system of law that is voluntarily accepted and voluntarily enforced. This does not mean that international law forfeits the right to

The nature of international law and the international system

be called law - because it still obliges states to do certain things. It means, rather, that it is not the same kind of law as national law. Moreover, in those areas where international law does function in a similar manner to national law- as where indi­viduals are given enforceable rights or are subject to personal obligations (e.g. war crimes) - international law has indeed developed institutional mechanisms similar to those existing in national legal systems. The well-established European Court of Human Rights, the War Crimes Tribunals for Bosnia, Rwanda and Somalia and the International Criminal Court are good examples.

Date: 2014-12-21; view: 1471