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Summary study book Textbook on International Law of Prof. Martin Dixon, Dr. Martin Dixon - ISBN: 9780199574452, Edition: 7, Year of publication: 2013 (Summary overall)
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International and European LawMeeting 1.
Chapter 1. The nature of international law and the international system
1.1 The role of international law
International law comprises a system of rules and principles that govern the international relations
between sovereign states and other institutional subjects of international law such as the United
Nations, the Arab League and the African Union. International law is unconcerned with the rights and
obligations of the individual or non-governmental organisation and it may be becoming more
concerned with them. It is that the rules of international law are created primarily by states, either
for their own purposes or as a means of facilitating and controlling the activities of other actors on
the international plane. Rules of international law cover almost every facet of inter-state and
international activity.
International law is a primary tool for the conduct of international trade. It is concerned with
nationality, extradition, the use of armed force, human rights, protection of the environment, the
dignity of the individual and the security of nations.
International law is the vital mechanism without which an interdependent world could not
function. In this sense, international law facilitates the functioning of the international community, of
which we are all a part and on which we all depend.
Modern international law also seeks to control states by inhibiting or directing their conduct
both in their relations with other states and in relations to individuals, both individuals of other states
and its own nationals. It is the evolution of international law from a system that was concerned
primarily with facilitating international cooperation among its subjects (states), to a system that is
now much more engaged in the control of its subjects that is the pre-eminent feature of the history
of international law in the last 75 years.
The practice of international law is intrinsically bound with diplomacy, politics and the
conduct of foreign relations. It is a fallacy to regard international law as the only facilitator or
controller of state conduct. It is nog designed to do it. International law does not operate In a sterile
environment and international legal rules may be just one of the factors which a state or government
will consider before deciding whether to embark on a particular course of action.
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. The United Nations Security Council imposes sanctions or
takes action against a delinquent state.
Similarly, those arguing in support of these uses of force do not dismiss international law as
irrelevant, 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.
How 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 daily basis in the Foreign Offices, national courts and other
governmental organs of states, as well as in international organisations such as United
Nations. Similarly, international organisations, in all their forms use lawyers, employing the
language of the law, to conduct their everyday business. These organisations and their
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 do not claim that they are above the law or
that international law does not bind them. In fact there is no modern day example of a state
claiming that it is nog 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. 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) Further convincing evidence of the existence of international law is that the overwhelming
majority of international legal rules are consistently obeyed. The apparent ineffectiveness of
international law stems from the fact that it is the occasions of law-breaking that receive the
most publicity. 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. The vast
majority of the rules of international law are obeyed most of the time.
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 is no reason to doubt is validity as a system of law. Rather it suggests
that if international 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 a problem with its binding
quality, but because of its less organised approach to the problems of adjudication and
enforcement. 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 – international law had developed institutional mechanisms similar to those
existing in national legal systems.
1.3 The enforcement of international law
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. 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 enforcement may be irrelevant to the binding quality of international law.
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, they are binding. 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, 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 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, but that is a question about
motives for compliance with law, not about its quality as law.
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 a rang of enforcement procedures.
,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.
Of course, there are limitations to the exercise of this power, both political and legal.
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. However
despite these setbacks it is apparent that the emergence of general, if cautious, cooperation 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. 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 of act of aggression and they are not specifically intended to meet the non-
fulfilment of general legal obligations. The powers of the Council are designed primarily to preserve
the peace rather than to enforce the law, although sometimes these can coincide. In fact in an armed
conflict, the first task of the Security Council is to stop the fighting and not necessarily to apportion
blame or act only against the guilty party.
The Council 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 the harm to individuals
evident to the world. We also know that when the Big Five’s vital interests are engaged 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 be further.
Thus, on a bilateral level, there may be termination of diplomatic relations, restriction of economic
aid of cancellation of supply agreements.
Similarly, a state’s unlawful action may cause the community at large to impose penalties.
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 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.
, 1.3.3 Judicial enforcement
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 recent International Criminal Court for dealing with serious
violations of international law by individuals. 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.
A second welcome development is the growth of specialised judicial institutions concerned
with discrete issues of international law.
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.
1.4 The effectiveness of international law
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.
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 inter-state 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. 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 a
psychological barrier against breaking international law simply because it is law. 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 the Foreign Offices and legal departments of he world’s government and in
international organisations.
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 non-governmental 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.
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