The enforcement of international law

Many jurists claim that the hallmark of a system of law is that its rules are capable of being enforced against (malefactors. Consequently, one of the most frequent arguments used against international law is that it is not 'true' law because it is not generally enforceable. This raises two issues. First, as a matter of principle, does the existence of any system of law depend on the chances of effective enforcement? Secondly, is it true that international law is not enforceable or effective?

In national legal systems it is assumed that the law will be enforced. If someone steals, provided they are caught, they will be punished. In international law this may not be the case. There was, for example, no formal enforcement action taken against the USA after its illegal invasion of Grenada and no formal condemnation of Israel for invading Lebanon in 2006. We might even suggest that on those occa­sions when the United Nations has acted (e.g. against Iraq after its invasion of Kuwait), it is more in the way of keeping or restoring the peace than of enforcing the law. Yet is it really true that the test of the binding quality of any 'law' is the pres­ence or absence of assured enforcement of its rules? It may be that the assumed cer­tainty of enforcement of national law masks its true basis and, in the same way, enforcement may be irrelevant to the binding quality of international law. For example, a better view of national law may be that it is 'law' not because it will be enforced, but because it is generally accepted as such by the community to whom it is addressed: the local population. The national society recognises that there must be some rules governing its life and, so long as these come into existence in the manner accepted as authoritative (e.g. in the UK through Act of Parliament), they are binding. In other words, the validity of 'law' may depend on the way it is created, that being the method regarded as authoritative by the legal subjects to whom it is addressed. The fact of enforcement may be a reason why individuals obey the law (and that is not certain), but it is not the reason why it is actually law. In international law, then, the fact that rules come into being in the manner accepted and recognised by states as authoritative (see the 'sources of law' in Chapter 2) is enough to ensure that 'law' exists. Less effective enforcement procedures may encourage states to flout the law more frequently than the individual does in national legal systems (although this is arguable), but that is a question about motives for compliance with law, not about its quality as Taw'.

If international law is regarded as a system of Taw', it is axiomatic that all states are under a legal obligation to abide by its rules. Evidence of the existence of this obligation has been presented above (section 1.2). What, however, of the methods

The nature of international law and the international system

which international law does possess for enforcing these legal obligations? While international law has never been wholly dependent on a system of institutionalised enforcement, the absence of a 'police force' or compulsory court of general compe­tence does not mean that international law is impotent. In fact there are enforce­ment procedures and these are considered below. Reference should also be made to section 1.4 on the reasons for compliance with international law.

Date: 2014-12-21; view: 1230