The effectiveness of international law

It has already been suggested that the great majority of the rules of international law are followed consistently every day as a matter of course. It is normal to obey international law. This is something that is overlooked by some critics of the system and it goes a long way to refute their claims that international law is nothing more than a haphazard collection of principles that can be ignored at will. In this section we will examine some of the reasons why international law does work.

1.4.1 The common good

There is no doubt that a very important practical reason for the effectiveness of international law is that it is based on common self-interest and necessity. Today, international society is more interdependent than ever and the volume of inter­state activity continues to grow. International law is needed in order to ensure a stable and orderly international society. It is in every state's interest to abide by the rules of international law, for they lay down orderly and predictable principles for the conduct of international relations and international commerce. For example, it

The nature of international law and the international system 11

is vital that the allocation of the scarce resources of the high seas and ocean floor is achieved smoothly and equitably and it is only through rules of international law -binding on all states - that this can be achieved. Likewise with the protection of the environment and the management of climate change. Thus, a major reason why international law works is that it provides a stable and authoritative regime for the conduct of international relations and the regulation of global issues in an increas­ingly interdependent world.

1.4.2 The psychological Rubicon

Law has a self-perpetuating quality. When it is accepted that the principles govern­ing the activities of a society amount to 'law', as is the case with states and inter­national law, the rules of that system assume a validity and force all of their own. For example, if a state is presented with a choice of action, one which is legal and one which is not, it will take pressing reasons for the state to act consciously in violation of the law'. Breaking international law, like breaking national law, is not a matter to be taken "lightly and certainly it is not the preferred course of conduct for a state. There is, in other words, a psychological barrier against breaking international law simply because it is law. If a state does embark on such a course of conduct, its action will be described as 'unlawful' or 'illegal', and these are regarded as more powerful forms of criticism than behaviour which is simply 'immoral' or 'unacceptable'. The psychological force of international rules as a system of law is a reason in itself why international law is obeyed.

1.4.3 The practitioners of international law

International law operates hand in glove with international politics and diplomacy. Its most potent field of operations is, in fact, in the Foreign Offices and legal depart­ments of the world's governments and in international organisations. While it is tempting to think of international law as operating in the abstract and impersonal terms of 'governments', 'organisations' and 'states', in practice the application of international law is a matter for the considered judgment of some individual some­where. This may be a judge of the ICJ or national court, a legal adviser at the UN or a government official. Along with the army of legal advisers available to non­governmental organisations, these are the actual practitioners of international law. The crucial point is that the great majority of these officials will have been trained in the national law of their own countries and they are likely to approach inter­national law in the same way as they would any other legal system. The practitioners of international law may have a 'habit of obedience' derived from their own training as national lawyers which serves to encourage respect for international law.

1.4.4 The flexible nature of international law

International law is not an 'adversarial' system of law. As we shall see when consid­ering the sources of international law, many of its rules have evolved from the practice of states and often these do not stipulate rigid obligations or confer over­riding legal rights. Indeed, in some circumstances, the substance of a rule may be unclear, as was the case with the law on the breadth of the territorial sea until the

The nature of international law and the international system

deliberations of the Third UN Conference on the Law of the Sea. It is a fact of the sys­tem that in many areas it may not be possible to achieve a clear and unambiguous statement of a state's legal position. This is the flexible nature of international law. This flexibility may be perceived as a weakness, for states need to know with some degree of certainty the precise scope of their legal obligations and the extent of their legal rights. Uncertainty is the mother of instability. In international law, however, the flexible or open-ended nature of the rules means that disputes are less likely to be seen as 'right' versus 'wrong'. The absence of rigid and precise obligations leads to modest claims and, because there may be no objectively 'right' answer, there is a premium on compromise. Moreover, the flexible nature of international law means that a state may be able to choose from a range of policies, all of which will be legal. It will not be hamstrung or feel 'boxed in'. The fact that international law rarely leaves the state with only one course of action is a great advantage for a system so bound up with politics and diplomacy.

Date: 2014-12-21; view: 1501