1 .2 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'?

1. 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.

2. 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.

3. 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.

4. 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

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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.

1.3 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.

1.3.1 The Security Council

Most legal systems provide for the use of forceful sanctions or penalties against malefactors. Under the Charter of the United Nations, the Security Council may take 'enforcement action' against a state when it poses a threat to the peace, or has committed an act of aggression or breach of the peace (Art. 39 and Chapter VII UN Charter). Enforcement action is authorised by resolution of the Council and may comprise military action, as with the use of force by the UN in Korea in 1950, against Iraq in 1990/91 and as authorised (but barely used) against Indonesia over East Timor in 1999/2000; or economic sanctions, as with the trading restrictions and embargoes against South Africa in 1977 and Serbia/Montenegro in 1992; or other similar measures, be they diplomatic, political or social, such as the manda­tory severance of air links with Libya (as a result of the Lockerbie incident) in 1992 and April 1993 and the partial embargo imposed on North Korea by SC Res. 1718 (2006) following the latter's nuclear test. The Security Council may even act against non-state entities, as with SC Res. 1390 (2002) imposing financial and economic sanctions against the Al-Qaida organisation and the Taliban.

Of course, there are limitations to the exercise of this power, both political and legal. Until the end of the 'cold war' between the (then) USSR and the USA, enforce­ment action under the UN Charter was largely impossible, even if there was a ser­ious outbreak of violence as with the many Arab-Israeli wars since 1945. Obviously, the veto power still enjoyed by the five permanent members of the Security Council, whereby any one negative vote can defeat a draft resolution, was the major cause of this. Indeed, this is not all history, for the threat of a veto - and the cer­tainty of its use - has meant that the Security Council has been unable to pro­nounce on the invasions of Afghanistan, Iraq and Lebanon. However, despite these setbacks, it is apparent that the emergence of general co-operation among the five permanent members of the Security Council has led in recent times to the adoption of more 'enforcement resolutions' under Chapter VII of the Charter than at any other time in the Organisation's history and many of the sanctions regimes put in place by these Resolutions are ongoing. Moreover, Council action has encompassed many different and diverse conflicts: the straightforward Iraqi aggression against Kuwait, the breakup of the sovereign state of Yugoslavia, the civil wars in Somalia and Sudan, the alleged Libyan sponsorship of aircraft terrorism, the denial of East Timor's independence by Indonesia and conduct likely to cause the proliferation of nuclear weapons. Of course, it is to be remembered that the Security Council's powers are exercised in response to a breach of the peace, threat to the peace or act of aggression and they are not specifically intended to meet the non-fulfilment of general legal obligations. Constitutionally, the powers of the Council are designed primarily to preserve the peace rather than to enforce the law, although sometimes these can coincide, as with Iraq and Kuwait. In fact, in an armed conflict, the first

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task of the Security Council is to stop the fighting and not necessarily to apportion blame or act only against the guilty party. That said, it seems that the Security Council is more willing to act in support of international legal principles than ever before. However, we must not lose perspective. Ultimately, the issue turns on the political will of states and the degree of cooperation among the five permanent members. As the crisis in the former Yugoslavian territories demonstrates, the Council (i.e. its members) is not always prepared to enforce even the most funda­mental of international norms, even if the threat to international society is obvious and severe and even if the interests of the Big Five are not directly engaged. We also know that when those interests are engaged - for example, in Afghanistan, Iraq, the Falkland Isles, Tibet, Chechnya and Lebanon - the Security Council is paralysed politically and legally.

1 .3.2 Loss of legal rights and privileges

Another method of enforcing legal obligations is to ensure that any violation of law results in the loss of corresponding legal rights and privileges. For example, if State A violates the terms of a commercial treaty with State B, the latter may be entitled to rescind the whole treaty or suspend performance of the obligations it owes to State A. Of course, this is no hardship to State A if its whole purpose is to avoid the obligations contained in the treaty, but the loss of legal rights or privileges may go further. Thus, on a bilateral level, there may be termination of diplomatic relations, restriction of economic aid or cancellation of supply agreements. In 1982, for example, the UK broke diplomatic relations with Argentina after its invasion of the Falkland Islands, and in 1979/80 the USA froze Iranian assets after the unlawful seizure of its embassy in Tehran. Similarly, a state's unlawful action may cause the community at large to impose penalties. Again, this can take various forms, includ­ing the expulsion or suspension from inter-governmental organisations, as when the International Atomic Energy Agency suspended Israel after the latter's unlawful attack on an Iraqi nuclear facility in 1981. Likewise, when Iranian students occu­pied the US embassy in Tehran, several Western industrialised powers cut back on their diplomatic contacts and in 1992 the European Community as a whole imposed trading restrictions on Serbia and Montenegro. Again, in 1995 Nigeria was suspended from the Commonwealth as a result of its violation of human rights. More strikingly, in 1999/2000 the EU imposed limited penalties (now lifted) on Austria - itself an EU member - following the election of what was seen as an extremist government, although whether any breach of 'international law' had occurred is not clear.

These methods of enforcement should not be underestimated for they can cause embarrassment and hardship to the delinquent state. Of course, such methods are overlaid with political and economic considerations and they cannot be regarded as a wholly trustworthy mechanism for the enforcement of legal obligations. They are often more appropriate for dealing with violations of international good practice rather than law and, of course, a state may choose to ignore a blatant violation of international law if it is in its interests to do so. However, on the whole, the loss of legal rights and privileges can have a greater practical effect on a delinquent state than overt displays of force, especially in today's highly interdependent inter­national community.

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1.3.3 Judicial enforcement

As we shall see in Chapter 10, there are various procedures for the settlement of dis­putes by judicial means. As well as ad hoc tribunals, there is the International Court of Justice (ICJ), being the principal judicial organ of the United Nations, and the relatively new International Criminal Court for dealing with serious violations of international law by individuals. Moreover, while a state cannot be compelled to use the ICJ for the resolution of a legal dispute, if a matter is referred to it, its award is binding on the parties and must be carried out. In this sense, the ICJ is primarily concerned with the enforcement of international rights and duties, even though the procedure by which states can be compelled to carry out awards of the Court is limited. Such compulsion is by reference to the Security Council and it suffers from all of the defects associated with that body. The procedure has never yet been suc­cessfully invoked, although the occasions on which resort to the Council is actually needed are relatively few as the majority of ICJ awards are carried out by the parties voluntarily, at least where the Court's jurisdiction was not seriously disputed. Of more general concern, however, is the ICJ decision in the Lockerbie Case (Libyan Arab Jamahiriya v UK and US 1992 ICJ Rep para. 22). In this case, Libya had applied to the Court for the indication of interim measures of protection (similar to tem­porary injunctions) because of alleged threats made by the UK and USA as a response to allegations that Libyan nationals were responsible for the destruction of the air­craft over Lockerbie in 1988. During the hearing of Libya's application, the Security Council adopted enforcement measures and the Court took the view that it was bound to dismiss Libya's claim because of the mandatory Council resolution which decisively characterised Libya's conduct as a threat to international peace (SC Res. 748). This acceptance by the Court of Security Council supremacy in what was clearly a legal dispute, and one that was already before the Court, illustrates very powerfully that matters of legal obligation can become entwined with political necessity in the system of international law. Whether the decision in the Lockerbie Case bodes well for the future of the ICJ as a mechanism for the enforcement of international law remains to be seen, especially if the Court's jurisdiction can be ousted by any reference of a matter to the Council. It is hoped, however, that the Court will not renounce its jurisdiction if the Council is only considering a dispute, as opposed to when it has actually made a concrete determination of the very ques­tion before the Court: see e.g. Judge Lauterpacht's separate opinion in the First Phase of the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) 1993 ICJ Rep 325, and the exercise of jurisdiction in the Congo Case (2000). Fortunately, this latter view seems to be gaining acceptance. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Rep July 2004), the ICJ considered the argument that the General Assembly of the United Nations lacked the power to request an Advisory Opinion on a matter while that issue was being dealt with by the Security Council (see Art. 12(1) UN Charter). This was rejected, one reason being that the mere pres­ence of an item on the Council's agenda did not prevent the Assembly from dealing with an issue that otherwise fell within its responsibilities (see Opinion on the Legal Consequences paras. 27-28). Although the point of contention involved the consti­tutional relationship of the Assembly and the Council, the parallels with the

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r elationship between the Council and the Court are clear and, after all, the Court did not decline to give the Advisory Opinion just because the matter of Israeli/ Palestinian relations was constantly before it. So it may be then, that only if the Security Council has taken concrete measures in respect of a dispute will the Court decline to exercise its jurisdiction - contentious or advisory - over a legal question (see section 10.8.5.11).

A second welcome development is the growth of specialised judicial institutions concerned with discrete issues of international law. The Iran-US Claims Tribunal, charged with unravelling the legal morass left by the ejection of the USA from Iran in 1979, provides a model for the judicial settlement of inter-state disputes and the Ethiopia/Eritrea Claims Commission is operating in much the same way to resolve issues arising from the separation of these two countries. Similarly, the Yugoslavia, Rwanda and Somalia War Crimes Tribunals and the International Criminal Court (ICC) reflect the growing importance of individuals as subjects of international legal disputes. Both the Yugoslavia and the Rwanda Tribunals have tried and con­victed and sentenced individuals, the Somalia tribunal is investigating cases and the Prosecutor of the International Criminal Court is currently investigating three situations and pursuing a number of cases against named persons.

Thirdly, many problems of international law arise in the national courts of states. Usually, this involves a dispute between a state and a private individual but some­times simply between two nationals. In either case, the national court may decide a substantive question of international law, which will then be binding on the par­ties. Moreover, awards of domestic tribunals, even if not voluntarily complied with, may be enforced by the normal enforcement machinery of the national legal sys­tem, subject only to certain immunities which foreign states enjoy (see Chapter 7). Again, in practice, such awards are seldom ignored because of the effect this would have on the relations between the state of jurisdiction and the state against whom the order was made.