el*nitiali+ed)
*n the following chapters m-ch will will be said abo-t the s-bstance of internationallaw the method of its creation and the legal persons or s-b0ects who may be go'erned by it. 3he p-rpose of this 4rst chapter is howe'er to e)amine the 'ery nat-reand 5-ality of this s-b0ect called international law. 6istorically international lawhas been derided or disregarded by many of the worlds foremost 0-rists and legalcommentators. 3hey ha'e 5-estioned 4rst the e)istence of any set of r-les go'erning interstate relations& second its entitlement to be called law& and third itse7ecti'eness in controlling states and other international actors in real life sit-ations. *n the early years of the twenty4rst cent-ry this theoretical re0ection of theprescripti'e 5-ality of international law seemed to be borne o-t in practice as an-mber of states gro-ps and indi'id-als became engaged in internationally-nlawf-l action witho-t e'en the remote possibility that their cond-ct co-ld bechecked by the international legal system. hate'er the legal merits of the 9ledin'asion of *ra5 or the *sraeli in'asion of ;ebanon or the detention of terrorists-spects witho-t trial or the -nhindered resort to terrorism by gro-ps based ine)isting states with or witho-t the s-pport of another states go'ernment or there0ection by some of international minim-m standards for the protection of theen'ironment the perception has been that international law is failing in one of itsprimary p-rposes > the maintenance of an ordered comm-nity where the weak areprotected from arbitrary action by the strong. ome commentators ha'e e'en s-ggested that we are witnessing the demise of this s-b0ect as as a legal discipline andsho-ld now recognise it as ha'ing political and moral force b-t not necessarilylegal content.3here is of co-rse some tr-th in these criticisms b-t let -s not pretend that weare arg-ing that international law is a perfect legal system. *t is not b-t neither isthe national legal system of any state. 6istorically there ha'e been s-ccesses andfail-res for the international legal system. 3he in'asion of -wait by *ra5 in 1@@!may ha'e prod-ced a signi4cant response from the international comm-nity bothlegally and militarily b-t the 9nited Aations failed in Bosnia omalia and -danand was impotent im potent as *srael in'aded ;ebanon in C-ly 2!!$. ;ikewise the denial of proced-ral and s-bstanti'e rights to those being held in detention by the 9D atE-antanamo Bay may well constit-te a 'iolation of the international law of h-manrights worthy of m-ch criticism b-t it pales beside the acti'ities of (ol (ot inFambodia in the late 1@!s or the Gwandan genocide of the 1@@!s. Hn the otherhand these episodes can be contrasted with the s-ccessf-l 9A
led e7orts to bringselfdetermination and then independence to Iast 3imor in 2!!2 the gro-ndbreaking establishment and operation of the *nternational Friminal Fo-rt responsible for
1 3he nat-re of international international law and theinternational system system
prosec-ting indi'id-als for 'iolation of f-ndamental international h-man rightsand the contin-ing impact of the *nternational Fo-rt of C-stice in reg-lating states-se of the worlds oceans and their nat-ral reso-rces. *n other words the story of international law and the international legal system like so many other legal sys tems is one with s-ccesses and fail-res. o in m-ch the same way that we wo-ldnot s-ggest that the law of the 9 is somehow not law beca-se it is c-rrently pro'ing impossible to control internet crime it does not necessarily follow that international international law sho-ld be dismissed as a system of law beca-se there are internationalactors that seem determined to ignore it.3he way in which the international system deals with these practical iss-esandthe many others that occ-r on a daily basis whene'er the members of theinternational comm-nity interact goes to the heart of the debate abo-t whetherinternational law e)ists as a system of law . 6owe'er to some e)tent this debateabo-t the nat-re of international law is -nprod-cti'e and e'en irrele'ant. 3hemost ob'io-s and most fre5-ently -sed test for 0-dging the e)istence or s-ccessof international law is to compare c ompare it with national legal systems s-ch as that operating in the 9 or Capan or anywhere at all. Aational law and its instit-tions >co-rts legislati'e assemblies and enforcement agencies > are held -p as thede4niti'e model of what the law and a legal system sho-ld be like. 3henbeca-se international law sometimes falls short of these standards it is arg-edthat it cannot be regarded as tr-e law l aw.. Jet Jet it is not at all clear why any form of national law sho-ld be regarded as the appropriate standard for 0-dging international international law especially since the rationale of the former is f-ndamentally di7erentfrom that of the latter. latter. Aational law is concerned primarily primaril y with the legal rightsand d-ties of legal persons indi'id-als within a body politic > the state or similarentity. similarentity. 3his law commonly is deri'ed from a legal s-perior recognised as competent by the society to whom the law is addressed e.g. in a constit-tion and ha'ing both the a-thority and practical competence to make and enforce that law.*nternational law.*nternational law at least as originally concei'ed is di7erent. *t is concerned withthe rights and d-ties of the states themsel'es. *n their relations with each other itis neither likely nor desirable that a relationship of legal s-periority e)ists. tatesare legal e5-als and the legal system which reg-lates their actions inter se m-streKect this. -ch a legal system m-st facilitate
the interaction of these legal e5-alsrather than control or compel them in imitation of the control and comp-lsionthat national law e)erts o'er its s-b0ects. Hf co-rse as international law de'elopsand mat-res it may come to encompass the legal relations of nonstate entitiess-ch as peoples territories indi'id-als or m-lti national companies and it m-stthen de'elop instit-tions and proced-res p roced-res which imitate in part the f-nctions of the instit-tions of national legal systems. *ndeed the recasting of internationallaw as a system based less on state so'ereignty and more on indi'id-al liberty is anaim of many contemporary international lawyers and there is no do-bt that 'erygreat strides ha'e been made in this direction in recent years. 3he establishment of the *nternational Friminal Fo-rt is perhaps the most powerf-l e'idence of thistrend. 6owe'er whate'er we might hope for in the f-t-re for international lawsee section 1. below it is cr-cial to remember that at the 'ery heart of the system lies a set of r-les designed to reg-late states cond-ct with each other and it isthis central fact that makes precise analogies with national law at present misleadingand inappropriate. 3he nat-re of international international law and the international system system
2 !1Li)onFhap!1.5)d 1M/!1/! !: (N (age 2
1.1
The role of international international law *n simple terms international law comprises a system of r-les and principles thatgo'ern the international relations between so'ereign states and other instit-tionals-b0ects of international law s-ch as the 9nited Aations and the Dfrican 9nionformerly the HD9. Ds we shall see that is not to say that international law is-nconcerned with the rights or obligations of the indi'id-al. Gather it is that ther-les of international law are created primarily by states either for their own p-r p-r poses or as a means of facilitating the f-nctions of organisations of which they aremembers. G-les of international law co'er almost e'ery facet of interstate interstate acti'ity.3here acti'ity.3here are laws reg-lating the -se of the sea o-ter space and Dntarctica. 3here arer-les go'erning go'erning international telecomm-nications postal postal ser'ices the carriage of goods and passengers by air ai r and the transfer of money. money. *nternational law is a primary tool for the cond-ct of international trade. *t is concerned with nationalitye)tradition the -se of armed force h-man rights protection of the en'ironmentand the sec-rity of nations. *n short there is 'ery little that is done in the international arena that is not reg-lated by international law and it can now go'ernsome aspects of relations between distinct -nits within a so'ereign state s-ch asthe territories of federal Fanada or the de'ol'ed regions of the 9. *nternationallaw is the 'ital mechanism witho-t which an increasingly interdependent worldco-ld not f-nction. *n this sense international law facili tates the f-nctioning of the international comm-nity. comm-nity. 6owe'er that is not all. Nodern international lawalso seeks to control states by inhibiting or directing their cond-ct both in theirrelations with other states e.g.the law prohibiting the -se of armed force to settledisp-tes and in relation to indi'id-als both indi'id-als of other states e.g. iss-esconcerning the e)ercise e)ercise of criminal 0-risdiction and its own nationals e.g. thelawof h-man rights. *t is the e'ol-tion of international law from a system
thatwas concerned primarily with facilitating international cooperation among itss-b0ects states to a system that is now m-ch more engaged in i n the control of itss-b0ects that is the preeminent feat-re of the history of international law in thelast si)ty years.*t is also important to realise that the practice of international law is intrinsicallybo-nd -p with diplomacy politics and the cond-ct of foreign relations. *t is afallacy to regard international law as the only facilitator or controller of statecond-ct. *t cannot be this and more signi4cantly it is not designed to do it.*nternational law does not operate in a sterile en'ironment and international legalr-les may be 0-st one of the factors which a state or go'ernment will considerbefore deciding whether to embark on a partic-lar co-rse of action. *n fact inmany cases legal considerations will pre'ail b-t it is perfectly possible that a statemay decide to forfeit legality l egality in fa'o-r of selfinterest e)pediency or h-manityas with the *ra5i in'asion of -wait in 1@@! and the 9led 9 led in'asion of *ra5 somethirteen years later. 3here is nothing s-rprising in this and it is a fe at-re of thebeha'io-r of e'ery legal person in e'ery legal system incl-ding that of the 9. *f it were not so there wo-ld be for e)ample no theft and no m-rder. *ndeed ininternational society where politics are so m-ch a part of law it may be thatconte)t-al and Ke)ible r-les so e'ident in international law are a strength ratherthan a weakness. 1.2
The existence of international rules as a system of law 3he most cogent arg-ment for the e)istence of international international law as a system of law is that members of the international comm-nity recognise that there e)ists a bodyof r-les binding -pon them as law. tates belie'e international law e)ists. hen*ra5 in'aded -wait in 1@@! or earlier when 3an+ania in'aded 9ganda in 1@8/@the great ma0ority of states regarded the action as -nlawf-l not merely immoralor -nacceptable. 3he same is tr-e of the war crimes committed in Bosnia andGwanda and this is gi'en concrete form when the 9nited Aations ec-rity Fo-ncilimposes sanctions on a delin5-ent state as with the embargoes on ;ibya nowlifted following the ;ockerbie bombing. 3he criticism of the 9led in'asion of *ra5 in Narch 2!!M and of *sraels forcef-l inter'ention in ;ebanon in C-ly 2!!$followed a similar pattern both being cast by a ma0ority of the internationalcomm-nity as a 'iolation of law not merely as -nethical immoral or -ndesirable.imilarly those arg-ing in s-pport of these -ses of force do not dismiss international international law as irrele'ant or 'ol-ntary b-t seek instead to 0-stify the in'asions aslawf-l -nder the legal r-les concerning collecti'e sec-rity and selfdefence. *n otherwords e'en the international actors who engage in potentially -nlawf-l acti'ity donot deny the rele'ance of international law or its prescripti'e 5-ality. 5-ality. 3his acceptance of the reality of international law by the 'ery persons to whom it is addressede)poses addressede)poses the weakness of those who arg-e that international law does not e)ist. Hf co-rse this does not answer 5-estions abo-t its e7ecti'eness nor does it settlewhether it is law in the same sense as that of the 9 or of other states. Jet Jet it doesreKect acc-rately the reality of international relations. 6ow then do we know thatstates belie'e that there is a set of r-les binding on them as law? hat e'idence isthere of this law habit? a
*nternational law is practised on a daily basis in the Ooreign Hf4ces nationalco-rts and other go'ernmental organs of states as well as in international organisations s-ch as the 9nited Aations and the Hrganisation of Dmerican tates.Ooreign Hf4ces ha'e legal departments whose task is to ad'ise on 5-estions of international law and to assist in the drafting of international agreements and the like.Aational co-rts are fre5-ently concerned with s-bstanti'e 5-estions of international international law as a s with the series of Pinochet cases in the 9 concerning 5-estions of imm-nity and h-man rights P2!!$Q 2 ;G 2 concerning the meaning of the international crime of aggression and its impact on domestic law la w. *n reading the 0-dgment of ;ordBingham in that case noone co-ld do-bt the legal 'alidity of the system of international law. law. imilarly international organisations in all their forms -se lawyersemploying the lang-age of the law to cond-ct their e'eryday b-siness. 3heseorganisations and their statemembers accept that they are legally bo-nd tobeha'e in a certain way and will p-rs-e claims against each e ach other alleging a breachof international law. b *t is a fact of the -tmost signi4cance that states > still the most important of the s-b0ects of international law > do not claim that they are abo'e the law or thatinternational law does not bind them. hen *ra5 in'aded -wait it did not claim 3he nat-re of international international law and the international system system
4
that the law prohibiting armed force did not apply to it or was irrele'ant. i rrele'ant. Gather*ra5 Gather*ra5 arg-ed that international law 0-sti4ed its action& in other words that it waslegal by reference to some other r-le of international law. law. ;ikewise in the
CaseConcerning the Application of the Convention on the Prevention and Punishment of theCrime of Genocide(Bosnia and Herzegovina ' Serbia !ontenegro" *FC 2!! erbia didnot deny the e)istence of r-les of law concerning genocide b-t contended ratherthat it was not internationally responsible for the 'iolations of international lawthat had taken place. *n fact there is no modern day e)ample of a state claiming thatit is not bo-nd by general r-les of international law altho-gh there is often a greatdeal of debate as to the precise obligations imposed by that law as in the BosniaSerbia Genocide Case where there was arg-ment o'er the precise obligations imposedby the Eenocide Fon'ention. 3his is powerf-l e'idence that states follow r-les of international law as a matter of obligation not simply as a matter of choice ormorality. ormorality. *f this were not so there wo-ld be no need nee d for states to 0-stify their actionin legal le gal terms when they departed from a legal norm. c 3he most con'incing e'idence of the the e)istence of international international law is that theo'erwhelming ma0ority of international legal r-les are consistently obeyed. Hf co-rse there will be occasions o ccasions when the law is ignored or Ko-ted 0-st as there willbe m-rder and theft in national law l aw.. *ndeed the apparent ine7ecti'eness of international law stems from the fact that it is the occasions of lawbreaking that recei'ethe most p-blicity. p-blicity. ome of the modern day and notorio-s fail-res of internationallaw s-ch as the 9 in'asion of Erenada in 1@8M the genocide of the -rds at thehands of the *ra5is and the in'asions of Dfghanistan *ra5 and ;ebanon in p-rs-itof the war on terrorism are not representati'e of the whole. H-tside of the e)ceptional cases the e'eryday operation of international law goes on in a smooth and-ninterr-pted fashion. 3he occasions when a state disregards its treaty or c-stomary law obligations are b-t a small fra ction of the occasions on which those obligations are obser'ed. 3he same is tr-e of the law of diplomatic imm-nities stateresponsibility and the law of the sea. *n short the 'ast ma0ority of the r-les of international law are obeyed most of the time. -ch obser'ance is not headline news. d *t is a f-nction of all legal systems to resol'e disp-ted 5-estions of fact andlaw. andlaw. *nternational law has to do this and beca-se be ca-se it has only a limited n-mber of de'eloped legal instit-tions it sometimes fails. 3hat howe'er is no reason todo-bt its 'alidity as a system of law. law. Gather it s-ggests that if international law is tobe on a par with national law it needs to de'elop better instit-tions responsible forlaw creation and enforcement. *n comparison with national law international lawmay be regarded as weak l aw not beca-se of its binding 5-ality b-t beca-se of itsless organised approach to the problems p roblems of ad0-dication and enforcement. Hn theother hand it has been s-ggested abo'e that
the e)istence of s-ch instit-tions is afeat-re of national law that may be o-t of place in an international system or atleast not merited to the same degree. Oor e)ample gi'en that international lawreg-lates the cond-ct of legal e5-als i t might be -nwise to ha'e a formal and coerci'e process of law enforcement. Dll states are powerf-l in some meas-re and allha'e the practical ability to inKict harm on each other whether that be economicpolitical or military. military. ith s-ch a reality it may be that the best way to reg-late statecond-ct is to proceed on the basis of a system of law that is 'ol-ntarily accepted and'ol-ntarily enforced. 3his does not mean that international law forfeits the right to
