THE ROLE OF LAW IN INTERNATIONAL POLITICS Essays in International Relations and International Law MICHAEL BYERS OXFORD UNIVERSITY PRESSContents List of Contributors Introduction 10, i. . The Importance of International Law SIR ARTHUR WATTS KCMG QC Carl Schmitt, Hans Morgetthau, and the Image of Law in International Relations MART! KOSKENNIEMI . How Do Norms Matter? FRIEDRICH V, KRATOCHWIL. ey ‘The Concept of International Law ’ . PHILIP ALLOTT Emerging Patterns of Governance and International Law STEPHEN }. TOOPE Domestic Politics and International Resources: What Role for International Law? EYAL BENVENISTI Human Rights and the Politics of Representation: Is There a Role for International Law? CHRISTINE CHINKIN Politics and Human Rights: An Essential Symbiosis MAKAU WA MUTUA Governing the Global Economy through Government Networks ANNE-MARIE SLAUGHTER The Politics of Law-Making: Ave the Method and Character of Norm Creation Changing? VAUGHAN LOWE Regulating the International Economy: What Role for the State? EDWARD KWAKWA_ xiii \7 35 69 109 131 149 177 207 227xii 12. 13. 14, 15. Contents How to Regulate Globalization? BRIGHITE STERN The Role of the United Nations Security Council in the International Legal System MARC PERRIN DE BRICHAMBAUT ‘The Functions of the United Nations Security Council in the International Legal System VERA GOWLLAND-DEBBAS The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections GEORG NOUIE Conclusion: International Law and the Changing Constitution of International Society ANDREW HURRELL Index 247 269 277 315 327 3491 The Importance of International Law SIR ARTHUR WATTS KCMG QC ‘The importance of international law’ is a beguilingly straightforward statement: bold, direct, positive, and confident. However, behind those apparent certainties lie the many uncertainties of the altogether more diffident questions: ‘is intecnational lave important—and if so, how and why?” One's sense of unease is sharpened by the thought that when considering our own national societies, we would not ask the equivalent question: ‘is English law impor- tant?” And it may be instructive to ask why that should be so. There are pethaps three main reasons. We assume, rightly, that an effective legal system in our own countries is an important element in the fabric of society; we take it for granted that such a system, and the rule of law generally, do exist in practice; and we ate generally confi- dent that, given our democratic systems, the cules of law which go to make up those systems'reflect a fair balance between the competing interests which exist within our own socictics, But at the international level there is a sufficient measure of doubt about each of these three elements to raise questions about the importance of international law. Each is therefore worthy of further consideration. . BO STATES ACCEPT THAT AN EPFECTIVE INTERNATIONAL LEGAL SYSTEM 18 AN IMPORTANT ELEMENT IN THE FABRIC OF THE INTERNATIONAL COMMUNITY? In principle, it would seem obvious that the importance of an effective international legal system is bound to be accepted at the international fevel. But the question still has co be posed: do States (as States are still the primary actors on the international stage) really want an effective international legal system? Do they assume its impor- tance in international relations? The answer may well be a truc lawyer's answer— ‘Yes! and ‘No’. The problem is grounded in the myth-begotten notion of State sovereignty. States, through their rulers or governments, think of themnselves as sovereign. They do not, of course, always know what sovereignty means, but it is clearly worth having and keeping. Since from their perspective it probably includes something akin to a tight to do whatever they wane to do, the fast thing that States are enthusiastic about admitting is the existence of something ‘out there’—like a system of law—which tells them there are certain things they cannot do. The instinctive attitude of many States is to do what they want, and legal con: erations come well down the list of subsidiary matters to be taken into account.6 Sir Arther Watts KCMG QC Those with real international power seldom pay much attention to the law: for them, rather than international law being the framework which controls what they may de, it is their actions which shape the law. The constraints imposed by the law can be as unwelcome as they are sometimes unexpected. Indeed, to remind a politician active in international affairs of the relevance —and even of the very existerice—of interna- tional law may sometimes be seen as an unfriendly act. But the fact remains that there are few, iFany, aspects of international life which are without legal implications. OF coutse, the political aspects of many matrets toom large, but this in no way deprives them of their legal aspects.' ‘To assert the political quality of a State's inter- national conduct cannot make intetnational law irrelevant to the evaluation of that conduct, And while an internacional system of law may perhaps be thought to be an excellent thing for mast of the time, at critical moments it can be rather a nuisance. Indecd, the more effective the international legal system is, the more of a nuisance for States it may become. We have some experience of this in the United Kingdom. Successive generations of politicians have grown up comforted by the doctrine of the sovereignty of Parliament, and reassured that if they do not Jifce the results of any particular state of legal affairs, Parliament can simply change the law. Part of the culture shock of join- ing the European Communities a quarter of a century ago was due to the slow dawn- ing of an awareness that in an incteasing number of fields there were external legal constraints upon what might be done, and that if those constraints were inconve- nient, it was not simply a matter of Parliament removing the inconvenience. Experience with che processes of the European Convention on Human Rights and Fundamental Freedoms has been somewhat similar. In a very real sense the United Kingdom had become subject, as never before, (o a written constitution impinging upon a significant portion of national life. Bur international law is not like that, is i@ Internationally, we can still act in the way we thinkk right, can't we? Well, actually, no, we cannot. There is this body of rules—-international law—which, as well as conferring certain rights on States, also imposes certain obligations on them in the conduct of their international relations. It may therefore be time for another dose of culture shock, As Tolstoy put it in War and Peace, it is now ‘necessary to renounce a freedom that does not exist, and to recognise a dependence of which we are not conscious’. “This body of international legal rules is obviously important in celation to the specific activities to which they apply--whether it be the use of force, rights on the high seas, the treatment of aliens, and so on, But even more important is what those specific rules imply at a much more general and abstract level. They are clear evidence of the existence of a climate of legality in international affairs, because unless States believe in the general notion of law as a basis for their behaviour, they would not seek to govern particular aspects of their behaviour by detailed rules. 1 See the Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons (1996) IC] Reports, para. 13. The Importance of International Law 7 On the whole, States do acknowledge the importance of there being an effective international legal system. The rule of law in international affairs? involves the exis- tence of a comprehensive system of law, certainty as to what the rules are, predictabil- ity as to the legal consequences of conduct, equality before the law, the absence of arbitrary power, and effective and impartial application of the law. The benefits of a state of affairs in which those elements are present are self-evident, and exert a power- ful positive influence. The rule of law represents a culture of order, In international affairs that culture has not yet been firmly established; nos, yet, has the international rule of law, But steady progress is being made, The rule of law is not something which can be estab- lished overnight either nationally, or internationally, Its benefits are long-term, not short-term: they are perceived not by the short-sighted, but by those with far-sight and insight. The rule of law inyolves accepting that international law is not an a la carte choice. [t applies as a whole, and for all States including (and indeed especially) those with the physical and political power to marginalize the law if they so choose. The international community prospers when law and power are in partnership, not when they are in conflict. 2 Power carties responsibility, and even the short-sighted must see that the alterna- tive to the rule of law is anarchy and disorder, even chaos, Except possibly in a short- term revolutionary context, the interests of mo State can prosper in such circumstances. International trade and commerce, international finance, interna- tional communications—ad are essential to the survival and well-being of States, and all vequire an international legal system to provide a stable framework within which they may function, The occasional constraints and disadvantages of the international legal system are overwhelmingly outweighed by the advantages which it confers on States, Ir is, after all, the basis of cheir rights. More importantly, and more generally, it provides for stability in international relations, That stability is in turn the necessary basis for the pursuit by States of their national interests. ‘Thus, on the whole, one may be ready to conclude that States do regard an cffec- tive legal system as an important clement in the functioning of the international community. They accept international law as an integral part of the international system of political order. State practice is replete with acknowledgements of the importance of international law as a system, and of the need to observe particular tules of the system. It is striking that virtually without exception States seck always to offer a legal justification for their actions, even in extreme circumstances where the action is manifestly contrary to international law-—for example, lraqs invasion of Kuwait in 1990. However valid or invalid the attempted justification may be, it is the very fact of advancing it which demonstrates the value attached by States to compliance with international law. 2 See further A. Wares, “The International Rule of Law (1993) 36 German Yearbook of International Law 15.8 Sir Arther Watts KOMG QC However, one may legitimately asl why States behave in this way when, at least at first glance, the international legal system has sufficient wealmnesses to cempt States, in the final analysis, simply to ignore it altogether. This is, of course, partly because States recognize, and reject, the alternatives of disorder and instability, and acknowledge that international law provides the only available framework for order and stability, But also it is partly because international law shares in the moral value which attaches to ‘law’ generally, and partly because of the weight attaching to considerations of reciprocity. It must also be said, even at the tisk of seeming too cynical, that it is partly because States know that international law is imperfect, uncertain, and ineffective in important respects, There is room for the view that all that States need for the general purposes of conducting their international relations is to be able to advance a legal justification for their conduct which is not demon- stably rubbish. Thereafter, political factors can take over, and the international acceptability or otherwise of a State's conduct can be left to be determined by consid- erations of international policy rather than of international law. In this light, if poli- tics is the art of the possible, then international law is merely the art of the plausible. In effect, States’ apparent acceptance of international law may be little more than high-sounding tokenism: they may feel that the importance of international faw can be safely acknowledged precisely because, in the final analysis, it is weak and can be ignored. This leads to the second main question which needs to be addressed. DOES AN EFFECTIVE INTERNATIONAL SYSTFM OF LAW, INCORPORATING THE. RULE OF LAW, IN FACT EXIST? Looking at the day-to-day events of international life, the record is by and large good. Take the Eurostar train from London to Paris ot Brussels—-you can do so only because of an Anglo-French treaty about the Channel Tunnel; fly ro Rome or New York—you can do so only because of air services agreements; try to sue a forcign diplomat, and discover that you cannot—-again, because of mules about diplomatic immunity which are grounded in international law. All of this we see as routine and we take for granted, Underlying these everyday activities is the wide range of international law issues embodied in such topics known to international lawyers as tetritorial sovereignty, freedom of the high seas, territor- ial waters, rights over aliens, and the application of treaties. For the most part, these routine aspects of international life seldom impinge upon the consciousness of the population at large, or even that of political ¢lites. But this is not always the case. Those who try to travel round the world by balloon, and omit to get clearance hefore they start from the various States whose territories they will overtly, quickly realize—as the Breitling Orbiter did in February 1998—that the Great Wall of China extends also around China's airspace, Air ravel is nota right to be freely exercised world-wide by private persons! Even at the international inter-State The Importance of International Law 9 level, air traffic agreements, although very technical, can also raise problems of very considerable commercial and political acuteness. The general point, however, remains valid. For the most part, the day-to-day affairs of international intercourse run smoothly, and international law-—which underpins them—plays its essential role without fanfare. The world gets on with its fife safe in the (unstated) assumption that order exists in the international commu- nity, No doubt 95 per cent, perhaps more, of intemational life is like that. However, the real systemic problems lic with the remaining 5 per cent of inter- national life. The concern in respect of these areas is not for ‘orderliness’, but rather for ‘order’ in the sense of ‘international public order’. Who ensures that interna- tional public order is maintained? Indeed, there is a prior question as to whose concept of international public order determines what it is that is to be maintained. And even if we know what ‘public order’ is to be maintained, and we know who is to maintain it, then there remains the further question as to how this should be achieved. Te is in these areas that the effectiveness of the international system of legal order comes under severe strain. It is tempting to see breakdowns in international osder as affording some sott of analogy with murders at the national level, Murders certainly occur mote often than we would wish, But no one seriously suggests that chat means that the legal system as such has broken down: murder is accepted as an unfortunate occutrence within an ongoing legal system. However, this analogy provides only very limited comfort. The scale of the national and international legal systems is totally different, as is the magnitude of the consequences of such unfortunate occurrences. Murder usually involves a single victim, whereas war involves mass killing and maim- ing. Fortunately, inter-State wars of the traditional, formal type are no longer common (although it would be premature to assume their complete disappearance, as the outbreak of hostilities between Ethiopia and Eritrea in June 1998 sharply reminded us). But the balance of misfortune is restored by the more far-reaching international consequences which civil wars now have. ‘These wars cannot be ring- fenced or quarantined, in the hope that the consequences will not spread. They spill over local boundaries, both in their hostilities (modern weapons are not boundary- sensitive) and theit consequences (such as the refugee flows to which they give rise). They tempt participation, cither openly or covertly, by outside States, which can lead de facto to inter-State wars, or to wars by proxy. Armed conflicts clearly pose a threat to the international community as a whole, even if they are essentially civil wars, but of course even mote so if they are truly international. Moreover, the international community has noc yet found the proper response. Faced with situations where the unwillingness to tolerate forceful changes of international frontiers runs up against the emergence of stubbornly persistent factual situations of that kind, the principles of non-recognition serve a short-term purpose but can hardly offer a long-term solution, Similarly, attachment to the terti- torial integrity of States coexists uneasily with the principle of self-determination, and in most cizcumstances one or other, but never both, of these considerations is10 Sir Arther Weetts KCMG QC allowed to prevail. The confusion of the conflict is matched by the weakness and uncertainty of the response. This is parely because some of the older certainties are being dismantled, without being effectively replaced. Two of the perceived underpinnings of the ‘old’ interna- tional community are disappearing before our eyes (if only we open chem wide enough)—namely, sovereignty and territory, The modern world is no longer a fit place in which cither of these two notions can prosper. The power which ‘sover- eignty’ was thought to embody was probably always a myth and a label at the inter- national level, bue even if it once had teal international significance, it has less and less now. It is being demoted to a symbol of emotional and nostalgic attachment to a fictitious past. As for territory, as the real expression of a State's exclusivity and the bedrock upon which stands every State’s right to say ‘this is mine’ and ‘Keep Out’, it looks set to succumb to the globalization of the world’s economy and communica tions, Globalization came upon States largely unnoticed, and now that they have noticed, they are finding that the traditional tools are no longet approptiate for the job. The consequences of globalization cannot be adequately regulated by reference toa legal order which is based on sovereignty and territory, the very concepts that are being outmoded by that same globalization. Another major change involves the use of armed force. Unlike sovercignty and territory which, as useful basic concepts, are being outmoded by general develop- ments in socicty at large, the international community sought itself to regulate the use of force. By voluntary choice, after looking around the world and seeing that the conflicts in it were bad, the international community cried ‘Stop! Resort to force is prohibited’, But outlawing resort to force is like abolishing taxes—it sounds like a good idea at first, but the more one thinks about it, the more problems one foresees, Perhaps the most secious problem with outlawing force is that sometimes resort to it is both necessary and desirable. It is often the only way to keep or restore order. ‘To prohibit resort to force is to create a gap in the necessary mechanisms for the regu- lation of the international community which it bas so far failed effectively to fill. There is a choice: the international community must either establish an internacional force to maintain ordet, or let States perform that function themselves. The framers of the United Nations Charter attempted the former, but their good intentions have never really been carried through, Although the emerging practice of national or multinational peacekeeping forces acting under ad hoc UN authority is a partial substitute, one is left in practice with self-appointed guardians of the peace. However, that cannot be a satisfactory basis on which to organize a legal order. Nevertheless, such self-appointment is not necessarily a recipe for chaos or abuse. Of course, unilateral resort to armed force in blatant disregard of international law does tend in that direction, but unilateral action is still possible within che law rather than in breach of it, First, resort to force is acceptable if undertaken pursuant to suitable international authorization, preferably from the Security Council, States accept this, provided they get the authorization they want. If they get it, and thereafter stay within ir, the results The Importance of International Law i fit readily within the formal requirements of the international community's legal order, However, the formal acceptability of authorized resort co armed force must not be allowed to conceal the fiequently underlying reality. This is vividly illuscrared in the Balkans, where the present century began and is now ending with extensive armed conflict. The Balkan Wars of 1911-13 were effectively settled by. the media- tion of the then Great Powers in 1913 and 1914. Those ‘Powers’ were Italy, Austria- Hungary, Germany, Great Britain, France, and Russia. More recently, the conflicts associated with the brealeup of Yugoslavia are (hopefully) in the process of being settled by today’s Great Powers. It is true that they have the general blessing of the Security Council and that they are ao longer called the ‘Great Powers’ but rather act in some other nominal guise-~-such as Peace Implementation Council, Contact Group, or Stecring Board. Nevertheless, in substance they are still the Great Powers: plus ¢a changes... ‘Those States determined to resort to atmed force need not be deterred if they fail to get the international authorization which they seek (they may even refrain from seelcing it, where circumstances are such that they are unlikely to attract sufficient supporting votes). There is a second lawful optiom open to them: they can invoke certain exceptions to the prohibition against the use of force, There are one and a half such exceptions. The one clear exception is self-defence. That is, it is clear in the sense that self- defence is acknowledged to be an exception, but it is not at all cleac what the content of that exception is. Given the need in practice to bring any resort to force which is not authorized by the Security Council within the scope of self-defence if it is to be considered lawful, the concept is being steadily distorted, so as to justify, or attempt to justify, a range of actions which no normal, waditional notion of self-defence would recognize as being comprised within it. However, this is not necessarily wrong, Self-defence probably has to be an inherently relative concept—relative to the times and circumstances in which invoked. Self-defence in the days of naval warfare, such as that at Trafalgar, is a very different thing from self-defence in the days of nuclear warfare, Exocet missiles, and the possibility of easy transport to almost any destination in the world of stnall packages of anthrax or nerve agents. All the same, there are limits to the burden which the concept of self-defence can safely, and legally, be called upon to beat. It is essentially a legal concept, and its application to any particular circumstances must be evaluated in accordance with international law. To stretch the concept to such an extent that it departs from the ordinary mean- ing of the term, as refined by judicial pronouncements, serves not only to undermine this particular branch of the law, but also to bring the law in general into distepute. ‘The half-exception co the prohibition on the use of force is only just beginning to emerge. Ie is thus its metely emergent status which justifies it being regarded at present as only a half-exception, Ir is the use of force to meet overriding humanitar- ian concerns. At the time of the Gulf War, it was seen clearly in relation to the Kurds in northern Iraq, It has again been evident in many aspects of international action in former Yugoslavia, such as the establishment of so-called ‘safe havens’ in certain12 Sir Avther Watts KCMG QC towns in Bosnia and Herzegovina, and in concerns expressed in 1998 by the inter- national community in relation to cepressive action by Serb forces in the Yugoslav province of Kosovo. And it is not only the occurrence of conflict which may bring this exception into play. The intervention in respense to the breakdown of all focal statal structures, with consequent overwhelming humanitarian consequences, that occurred in Somalia in 1992-4, fell into this general category at least with regard to its motivation, even though it was specifically authorized by the Security Council. Whatever one may think of the individual incidents, the trend scems clear, The world does have a social conscience: John Donne told us that we should ‘ask not for whom the bell tolls—the answer (‘It tolls for thee’) is international as much as personal, President Woodrow Wilson nay be credited with some foresight when he observed, in a speech at Pueblo in 1919, chat ‘you wilt sce that international law is revolutionized by putting morals into it’, There és an international social imperative which cannot be ignored, whatever the letter of the law may say. Perhaps it repre sents a special kind of ins cagens which prevails even over Article 2.4 of the Charter (bearing in mind that Article 103 of the Charter only refers to conflicts between the Charter and other agreements; it does not expressly cover conflicts with other rules of international law, let alone rules having the status of us cogens, a concept which was unknown in 1945). This is perhaps all due in part to the decline of tertitory as an absolute in the international community's legal order, Humanitarian action involves denying to a State its exclusivity within its own territory. The plea that something is solely a matter of a State's own internal aflairs is a plea which, increasingly over the tast fifty years, has fallen on deaf ears. Increasingly, what happens within States can no longer be treated as solely their concern, Human rights initiated the wend, the environment followed suit and is in turn followed by conduct creating vast refugee flows and inte:- nal conflict which can nowadays so easily spill over and disrupt, iF not destroy, whole regions. ‘The situation in Kosovo, a part of the Federal Republic of Yugoslavia (FRY), in 1998 vividly illustrated these general considerations. ‘The 90 per cent ethnic Albanian population of Kosovo, who tesent the rule of the Serb-dominated FRY of which Kosova forms pat, sought first to regain the autonomy which Kosovo had enjoyed until 1989, and then gradually resorted to armed struggle to gain indepen- dence from the FRY. Repression of these Kosovan movements by the armed forces of the FRY took extreme forms which earned the strong condemnation of the inter- national community in general—yet all States accepted that Kosovo was part of the FRY. Indeed, the international community has been insistent that it did not agree to independence as an acceptable goal for Kosovo. ‘The tertitorial integrity of the FRY has been given priority in this context, and remarkably little has been heard of the principle of selfdetermination, Thus, the international community emphasized that the matter was, essentially, a civil war and an internal matter for the FRY, for which the latter was nevertheless internationally accountable. It is necessaty to tty to shape concepts cotrectly, especially when they are first The Impartance of International Law 13 emerging. And to assert an oversiding international social imperative that gross viola- tions of humanitarian standards cannot be permitted, one must ask whose standard of social necessity determines the content of that imperative. The world is multicul- tural, and one region's standards are not necessarily better than another's, ‘Different yes—but ‘better’? Even if one were to accept, with whatever qualifications are necessary, the enforce- ment of humanitarian standards as a possible exception to the genetal prohibition against the use of force, alongside the more clearly established exceptions of self- defence and international authorization, most internationally wrongful acts never- theless remain beyond the realistic scope of forceful enforcement action. Generally States have no lawful alternative but to rely on diplomatic remonstrations, and such forms of unilaceral pressure not involving force as they can bring to beat. These are usually actions such as restricting or disrupting disctetionary bilateral links, or imposing various forms of economic or political sanctions, but they all lack compul- sive authority. They are also relatively blunt instruments, which can damage others than those against whom they are directed (even including the very States which have invoked them). Although considerations of reciprocity, and the interdependence of States, render such measures more effective than they might otherwise be if consid- ered in isolation, they remain poor substitutes for what most societies accept as the normal mechanism for enforcing the law and settling disputes, namely an effective and comprehensive judicial system. However, at the international level, the reality is that for the most part States can act without fear of effective legal control. Although the International Court of Justice cxists, it can only deal with an infinitesimally small part of the whole range of international problems; and even then it can only deal with them to the extent that the States concerned consent. Much the sane can be said of other international courts and tribunals. Sometimes, of course, States get a shock and find themselves before a tribunal through some eatlier consent which they had overlooked or which had been given in some other context but which, to their surprise, is held to cover also the instant case. ‘This is rare, however. Across the board, States can usually proceed without any prac- tical fear of being called to account before an impartial judicial tribunal. The relative weakness of the international judicial system inevitably reduces the effectiveness of international law and thus its importance as a regulator of State behaviour. It is, however, important not to overstate the weaknesses of the international judi- cial order, just as it is importance not to equate the international judicial order with the International Court of Justice alone, The network of international tribunals functioning judicially has grown fast in the past fifty years, and looks set to continue growing, In comparison with che situation 100 years ago, today’s international judi- cial structures ave impressively extensive. None the less, the international judicial order suffers from one particular weale- ness, namely its consensual character. Even the so-called ‘compulsory’ jurisdiction of the IC] depends on the consent of States to participate in that part of the Court's system, Unfortunately, it does not follow that where a State has accepted a Court’s14 Sir Arther Watts KCMG QC jurisdiction it is ready 10 comply with the Court’ judgments, This is illustrated by certain potorious cases? and notwithstanding Article 94 of the United Nations Chaster, Hitherto, international eribunals have been very solicitous of the interests of those who voluntarily accept their jurisdiction. Tribunals are indeed faced with a diletma. On the ove hand, the administration of justice may call for a tribunal to take a firm fine with a State appearing in a case before it. On the other hand, if the tribunal takes too firm a line, the State concerned may walk away from the tribunal, and other States may be deterred from referring their problems to the hands of such a ‘tough’ tribunal, To seck to do justice in such a way that the curial mechanism for doing justice is undermined may not, in the long run, be the best way Forward in the wider interests of inccrnational order. ‘There is room for the view that international tribunals could take a firmer line with those States appearing before them. It may be that the temper of the inter- national community towards the international judicial system is becoming more rigorous—a kind of ‘judicial climate change’ may perhaps be detected. Looking at the International War Crimes Tribunal for former Yugostavia (und even the less successfull parallel Rwanda Tribunal), the prospective International Criminal Court, the former GAT panels, and now the WTO system of adjudication for trade disputes, the regional judicial structures such as the European Court of Human Rights, and so on, it may not be too fanciful to see in chem not only a gradually greater willingness on the part of the international community to impose strong judicial structures on itself, but also a greater readiness on the part of States to accept that increased scrength. Ic is, in fact, a measure of the interna- tional judicial system's authority how far it is willing to éampase that authority on States. At the same time, the exercise of that authority may itself be expected to increase the esteem of the system, and thus render the rejection of that authority less likely. The circle becomes a virtuons upward spiral, nor a vicious downward one. Moreover, the need for international jurisdiction to be consenstal may be show- ing some signs of erosion, in reality if not yet in theory. The closer integration of judicial structures into arrangements iu which States have a strong interest in parti ipating means that their acceptance of the judicial element becomes subsumed within their much greater need to accept the arrangement as a whole, While still a matter of consent, the attraction of the overall arrangement (e.g. in the field of inter national trade) is such that withholding that consene is not really an option, With that knowledge in the background, the integrated tribunal can afford to be robustly judicial without risking. its authority being denied, Bur, just as no tribunal can be robustly judicial if it fails, gira tribunal, to observe proper judicial standards, so too the authority it wields within the community 2 Most recently in the Case Concerning the Viewna Convention on Consular Relations (Panagnay USA) (2998) [Cj Reports (Order of 9 Apr. 1998), in which, despite an Order fiom the IC} requiting shat the execution of a Paragdayan national be delayed ponding considesation of the merits of the dispute, he was exectited a few days after the Court made its Order. The Importance of International Law 415 reflects the extent to which the laws it applies command general respect. One must therefore ask a further question. DO THE RULES OF INTERNATIONAL LAW REPRESENT A FAIR BALANCE BETWEEN THE COMPETING INTERESTS WITHIN THE IN''ERNATIONAL COMMUNITY? “The existence of competing interests is a normal feature of any society: international society is no different, But not all States are at the forefront of such competition: most juist want order, However, soine States seek to impose their own kind of order. Over the past fifty years thete have been great conflicts of this kind, For example, the order of the old, imperial world was ranged against that of the newer, post-colonial world. The order of the economically developed world confronted that of the economically developing world, There was also the order of the communist world, pitted against that of the Western democratic world. That ideological struggle now seems to be over, but in the field of buman rights a similar strugele still rages: is it my idea of buman rights, ot yours which is to prevail? None of this is inimical to the existence or effectiveness of an international legal oder. Ir is natural for social groups to struggle far what they see as theit own best interesté. Out of that struggle emerges a balance, which reflects the new order. The process is dynamic, not static: interests fade, existing interests change cheir empha- sis, and new interests emerge. Moscover, the balance changes not just because of the changing interests of international society’s component groupings, but also because of changing technologies which open up new areas in which balances have to be struck, and because of changes in the focus of States as they respond to world events. As all these changes occur, the balances within the international community change too. International law, which can only be important to the international community if it reflects the balances within that community, must therefore change as well. An out-of-date law is an irtelevant law, and an irrelevant law cannot be an important law. The processes of change in international law are, however, imperfect. Much of the law is customary international law, based on the general practice of States—a phenomenon which is as imprecise a source of law as it isa slow vehicle for change. Even ifit is admitted that in applying the law courts may occasionally change it, judi- cial decisions can hardly be an apptopriate way of securing methodical change. Judicial involvement with the law is in this context essentially haphazard, since it depends entirely on what particular matters States may choose to bring forward for judicial settlement. Moreover, a coure will be concerned to decide the particular case brought before it, rather than formulate the whole branch of the law of which part may be in issue in the case. Treaties can gencrate general changes in the law, but only slowly, as part of a process involving the growth of new customary international law. For the most past treaties only bind the parties and do not, even when participation in them is widespread, approach the status of true law of general application. The16 Sir Avther Watts KCMG QC reality is that the international legal system has no legislative process capable of producing instant and general change in the law. ‘An equal reality, however, is that intemational law does change. The processes of change may not be rapid, or reliable, or straightforward, but somehow the necessary changes oceut, ‘Muddling through’ can be as effective in practice as it is unsatistac- tory in principle, At least it shows that the international legal system does not suffer from so substantial an inability to change that the system itself is undermined. 'The problems lie more in the timeliness of change, and in securing the right ditection for change. CONCLUDING OBSERVATIONS "There seems no good reason to doubt that, across the board, international law is an important part of the structure of our international society. States accept it as such, and their record in observing it bears comparison with the level of law observance in many countries. It is, however, necessary to emphasize that it is ‘part’ of the struc- ture, in wo senses of the word. First, it is an integral pare of ic, and therefore not an optional extra; and second, it is but one part in the overall equation—-important, but not to the exclusion of other parts. Its importance is a function of its effectiveness and its ability to respond to change. Both, at the present time and for the most part, are adequate, but perhaps only just. Certainly, ncither can be taken for granted. Both need attention and devel- opment within a framework of respect for the international rule of law, if a stable international order is co prevail.