NILS Law Review
November, 2014
Vol. 1
in order to facilitate easier interactions between parties, and it often directly benefits a country to follow an existing law. There have been instances in history where States subordinate terms of an agreement between them to convenience of the moment. For example, in the Paquete Habana case,15 ―When Britain and France had formally stopped seizing each other's fishing vessels at the beginning of the nineteenth century, Britain proclaimed that this action was not created from an agreement, but from a simple concession and that this concession would always be subordinate to the convenience of the moment.‖16 When there is a participatory process, States may comply with it because it works in their favour. Only if there is cooperation between actors, there will be legitimate law. 17 Rosalyn Higgins attempts to counter all criticisms made against the idea of international law being law owing to the lack of a formal sanctioning authority. She iterates four broad propositions: law provides an operational system to achieve certain values that society puts up at a pedestal; law is not only about resolving disputes, which is a mere part of the legal system, but about creating a system that avoids disputes in the long run; dispute settlement mechanisms must be created; and finally, in case this fails, you need an alternative set of rules to provide for friendly relations between states, through peace-making forces, additional political mechanisms, etc.18 Further, she believes that the positivistic idea that law simply consists of rules to be applied impartially, which international law lacks due to the absence of an effective sanctioning authority, is inherently flawed. Indeed, international law is a continuing process that changes with circumstances, not merely frozen rules. Rules may be a part of what law is, but the essence of law lies in its ability to adjust to changing environmental circumstances and political ideologies.19For example: till the 1940s, individuals, companies, organisations and States as a whole participated in activities without acknowledging any potential consequences to the environment, assuming that it would rejuvenate itself. Then, in 15
The Paquete Habana, 175 U.S. 677 (1900).
16
Jack L. Goldsmith, Eric A. Posner, Understanding the Resemblance between Modern and Traditional International Customary Law, 40 VA. J. INT‘L. 639 4 (2000).
17
ROSALYN HIGGINS, Problems and Process: International Law and How We Use It, 13-16 (Clarendon Press, 1994) (1995).
18
Ibid.
19
Id.