Chapter 9

International law and

PRACTICE

'A law dependent for its existence on the consent of its subjects, without legislature for its creation or alteration, lacking effective machinery of enforcement, difficult to ascertain and regularly disregarded is no law at all. Discuss.'^*

Definition and general principles

International law is the outcome of man's endeavours to extend into the field of interstate relations the rule of law and the respect for order which exists within the state. The period since the end of the Cold War, however, has not been an encouraging one for its advocates. Whether in the field of recognition, extradition or the use of force, international law has been ignored, contravened or perhaps worse, abused in the political interest.

Basically - and traditionally - international law is defined as the body of rules governing the relations between states. However, since the rapid evolution of the concepts of social and interstate responsibilities resulting from postwar factors and events (e.g. the creation of new states and increased involvement of the individual) and reflected in the development of the United Nations, a wider definition of the term has become necessary. The following is J. G. Starke’s definition as contained in his Introduction to International Law.

International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which include also:

(a) the rules of law relating to the functioning of international institutions or organisations, their relations with each other and their relations with states and individuals; and

(b) certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community.

Although international law is the subject of much debate and opposing viewpoints, there are certain areas of almost complete agreement (e.g. piracy on the high seas and the immunities of diplomats), just as at the other end of the spectrum there are areas of considerable disagreement. It cannot thus be claimed that it is a subject merely for academic lawyers; but on the other hand it could be argued that 'international law' was, in some respects, a contradiction in terms. It is something of a paradox, attracting both disciples and sceptics: those who, with missionary zeal, see it as the path to world peace and righteousness; and those who maintain that without legislature or international sanctions there can be no international law. Both views are to some extent valid, and its relevance in diplomatic relations lies in the fact that considerations of international law do in fact influence governments and provide standards of international behaviour which they acknowledge as being the ideal, even though they may not always manage to live up to them. But like all good causes, international law is liable to be the subject of evil designs, and politicians the world over are not slow to invoke and if necessary distort its principles when it suits their purposes, or to disclaim them if they should prove to be embarrassing. It is thus a subject that diplomats must be acquainted with, but handle with care. The sources of international law are, in brief: treaties, custom, general principles of law, judicial precedents and the writings of leading authorities.

The following topics have been selected as being of interest to diplomats and as a basis for further study; it is not pretended that issues of international law can be effectively reduced to simple generalisations and to imprecise non-legal terminology.