International law

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International law, is the body of law that "regulates the activities of entities possessing international personality". Traditionally, that meant the conduct and relationships of states. However, it is now well established that international law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals.

As Rosalyn Higgins stated, international law is a normative system "harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialised or developing".[1] The necessity for international law arises from the need to ensure a process that regulates competing demands and establishes the framework for predictable and agreed community behaviour.

The term "public international law" is occasionally used as a synonym to distinguish international law from "private international law". The latter regulates the relations between persons or entities in different states and is in fact not international law at all (a better term which has been suggested for private international law is "conflict of laws").

The scope of international law

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.

Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".[2]

Where there are breaches of the law, international law has no established compulsory judicial system for the settlement of disputes or coercive penal system. That is not to say that there are no judicial or quasi-judicial tribunals in international law. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter.

Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g. NAFTA Chapter 11 actions) have been inclusive of corporations, and even individuals.

Fundamental conflicts over international law

The 17th, 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including WWI and WWII, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the Nuremberg trials. Over the past fifty years, more and more international laws and law making bodies have been created.

Many people feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in the light of international law and standards (see world government for trends and movements leading in this direction). A number of states, notably the United States vehemently oppose this interpretation, maintaining that sovereignty is the only true international "law" and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a new area of law its development is uncertain and its relevance and propriety is hotly disputed.

Sources of international law

See main article: sources of international law.

International law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

Interpretation of International Law

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute. The Vienna Convention on the Law of Treaties writes on the topic of interpretation that:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1))

This is actually a compromise between three different theories of interpretation:

  • The textual approach is a restrictive interpretation which bases itself on the "ordinary meaning" of the text, the actual text has considerable weight.
  • A subjective approach considers the idea behind the treaty, treaties "in their context", what the writers intended when they wrote the text.
  • A third approach bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation".

These are general rules of interpretation; specific rules might exist in specific areas of international law.

Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.

Enforcement by international bodies

See main article: international legal system.

Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions.

They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction.

Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of 2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.

Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.

History

See main article: history of international law.

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe. In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic, rector of Jagiellonian University (Kraków, Poland), theologian, lawyer and diplomat, presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land.

At the beginning of the 17th century, several generalizations could be made about the political situation:

  1. Self-governing, autonomous states existed.
  2. Almost all of them were governed by monarchs.
    1. The Peace of Westphalia is often cited as being the birth of the modern nation-states, establishing states as sovereigns answering to no-one within its own borders.
  3. Land, wealth, and trading rights were often the topics of wars between states.

Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes in Europe.

The French monk Emeric Cruce (15901648) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas (1623), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War (16181648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes.

The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established.

After World War I, the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a "League of Nations". However, due to political wrangling in the U.S. Congress, the United States did not join the League of Nations, which was one of the causes of its demise. When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1, 1942, US President Franklin D. Roosevelt issued the "Declaration by United Nations" on behalf of 26 nations who had pledged to fight against the Axis powers. Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations. On October 24, 1945, the United Nations officially came into existence, setting a basis for much international law to follow.

Modern international law is often affirmed as the product of modern European civilization.

The seafaring principalities of India established legal rules for ocean navigation and regional commerce.

The Greek system of independent city-states bore a close resemblance to contemporary nation-state system. The Aetolian and Achaean leagues of the 3rd century BC represented early organisational efforts at international cooperation and facilitated the development of arbitration as a dispute settlement technique.

International legal theory

Natural law

The intellectual seeds of modern international law germinated in the 16th and 17th centuries, when the influence of the Catholic Church in international affairs gradually weakened. Many early international legal theorists were concerned with axiomatic truths thought to be reposed in natural law. Among the early natural law writers, Francisco de Vitoria, Dominican professor of theology at the University of Salamanca, examined the question of just war and Spanish authority in the Americas. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536.

Eclectic school

Central in the development of modern international law was Hugo Grotius a Dutch theologian, humanist and jurist. In his principal work De jure Belli ac Pacis Libri Tres ("Three Books on the Law of War and Peace"; 1625), Grotius claimed that nations as well as persons ought to be governed by universal principle based on morality and divine justice. Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine of Hippo. Drawing also from domestic contract law, he also noted that relations between polities were governed by jus gentium, the law of peoples, which had been established by the consent of the community of nations. (See pacta sunt servanda).

The fundamental facets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became definitive to international law in Europe. These principals were recognised in the Peace of Westphalia and became the foundation for the treaties of Osnabrück and Münster.

Another eclectic thinker, German philosopher Christian von Wolff, contended that the foundation for international community should come as a world superstate (civitas maxima), having authority over the component member states. This view was rejected by the Swiss diplomat Emmerich de Vattel, who favoured a rationale of equality of states as articulated by 18th century natural law. Vattel suggested in his major work Le droit des gens that the law of nations was comprised of custom and law on the one hand, and natural law on the other.

Legal positivism

The early positive school emphasized the importance of custom and treaties as sources of international law. Among the early positivists was Alberico Gentilis, a professor of civil law at Oxford who used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another professor at Oxford, Richard Zouche, published the first manual of international law in 1650.

In the 18th century legal positivism became popular and found its way into international legal philosophy. The principal figure among 18th century positivists was Cornelius van Bynkershoek, a celebrated Dutch jurist who asserted that the bases of international law were customs and treaties commonly consented to by various states. A second positivist, John Jacob Moser was a prolific German scholar who emphasized the importance of state practice in international law. A contemporary German scholar, Georg Friedrich von Martens, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe.

The growth of nationalism and Hegelian philosophy in the 19th century pushed natural law farther from the legal realm. Commercial law became nationalised into private international law, distinct from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality to morality and ethics. The Congress of Vienna in 1815 marked formal recognition of the political and international legal system based on the conditions of Europe.

Branches of international law

Notes and references

  • Higgins R, Problems and process : international law and how we use it (Oxford : Clarendon Press, 1994) at 16.
  • Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976)

See also

Related topics: international community, world government, nationality, terrorism, environmental agreements, international auxiliary language, state, territorial integrity, Non-Intervention.

Further reading

  • Philippe Sands, Lawless World: America And the Making And Breaking of Global Rules, from FDR's Atlantic Charter to George W. Bush's Illegal War, Penguin USA (October, 2005), hardcover, 324 pages, ISBN 0670034525


References