International law is the set of rules generally regarded and accepted in relations between nations.It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to individual citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts.
International law is consent-based governance. This means that a state member may choose to not abide by international law, and even to break its treaty.This is an issue of state sovereignty. International laws are consent-based. Violations of customary international law and peremptory norms ( jus cogens ) can lead to wars.
The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not. This theory of power interruptions can also be found in the writings of the Roman Cicero and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time
The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised 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 mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, and not binding except as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly destructive, most markedly towards civilians, who decried their horrors, leading to calls for regulation of the acts of states, especially in times of war.
The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, and Alberico Gentili, Francisco de Vitoria and Hugo Grotius, the "fathers of international law."Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings.
One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law. This led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War.
In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not limited to, the Permanent Court of Arbitration in 1899; the Hague and Geneva Conventions, the first of which was passed in 1864; the International Court of Justice in 1921; the Genocide Convention; and the International Criminal Court, in the late 1990s. Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute.
Under article 38 of the Statute of the International Court of Justice, international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law",
International treaty law comprises 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), under the aegis of the United Nations. 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.
International law is sourced from decision makers and researchers looking to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute of the International Court of Justice: Treaties, customs, and general principles are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law. Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit hierarchy of sources.However, there is no concrete evidence, in the decisions of the international courts and tribunals, to support such strict hierarchy, at least when it is about choosing international customs and treaties. In addition, unlike the Article 21 of the Rome Statute of the International Criminal Court, which clearly defines hierarchy of applicable law (or sources of international law), the language of the Article 38 do not explicitly support hierarchy of sources.
The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda . This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.
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 interpretation is within the domain of the protagonists, but may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end. Insofar as treaties are concerned, the Vienna Convention on the Law of Treaties writes on the topic of interpretation that:
This is actually a compromise between three different theories of interpretation:
These are general rules of interpretation; specific rules might exist in specific areas 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. International 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.
In theory all states are sovereign and equal. As a result of the notion of sovereignty, 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, it is thought by many international academics that most states enter into legal commitments with 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".
Traditionally, sovereign states and the Holy See 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., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.
The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Numerous people now view the nation-state as the primary unit of international affairs, and believe that only states may choose to voluntarily enter into commitments under international law, and that they have the right to follow their own counsel when it comes to interpretation of their commitments. Certain scholars[ who? ] and political leaders 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, argue that international law has evolved to a point where it exists separately from the mere consent of states, and discern a legislative and judicial process to international law that parallels such processes within domestic law. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations.
A number of states place emphasis on the principle of territorial sovereignty, thus seeing states as having free rein over their internal affairs. Other states oppose this view. One group of opponents of this point of view, including many European nations, maintain that all civilized nations have certain norms of conduct expected of them, including the prohibition of genocide, slavery and the slave trade, wars of aggression, torture, and piracy, and that violation of these universal norms represents a crime, not only against the individual victims, but against humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual responsible for violation of international law, he "is become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind",and thus subject to prosecution in a fair trial before any fundamentally just tribunal, through the exercise of universal jurisdiction.
Though the European democracies tend to support broad, universalistic interpretations of international law, many other democracies have differing views on international law. Several democracies, including India, Israel and the United States, take a flexible, eclectic approach, recognizing aspects of international law such as territorial rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being subjects of international law at all. Democracies in the developing world, due to their past colonial histories, often insist on non-interference in their internal affairs, particularly regarding human rights standards or their peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter.
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It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.
Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. 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 through the Security Council.
Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able and willing to compel compliance with international norms), "enforcement" of international law is very different from in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a particular aspect of international law, the norm may actually change according to concepts of customary international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States' declaration of war against Germany. By World War II, however, the practice was so widespread that during the Nuremberg trials, the charges against German Admiral Karl Dönitz for ordering unrestricted submarine warfare were dropped, notwithstanding that the activity constituted a clear violation of the Second London Naval Treaty of 1936.
Apart from a state's natural inclination to uphold certain norms, the force of international law comes 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 may be through diplomacy and the consequences upon an offending state's reputation, submission to international judicial determination,arbitration, sanctions or force including war. 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.
It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace.
As a "deliberative, policymaking and representative organ", the United Nations General Assembly "is empowered to make recommendations"; it can neither codify international law nor make binding resolutions.Merely internal resolutions, such as budgetary matters, may be binding on the operation of the General Assembly itself. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate.
General Assembly resolutions are generally non-binding towards member states, but through its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it had the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace".
The Uniting for Peace resolution was initiated by the United States in 1950, shortly after the outbreak of the Korean War, as a means of circumventing possible future Soviet vetoes in the Security Council. The legal role of the resolution is clear, given that the General Assembly can neither issue binding resolutions nor codify law. It was never argued by the "Joint Seven-Powers" that put forward the draft resolution,during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council. The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made recommendation by the Assembly's adoption of resolution 377 A.
Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "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 adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which 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 (ICJ) 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, 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 court's 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 international lawyers. As of June 2009, there are 15 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. Investment treaties commonly and routinely provide for enforcement by individuals or investing entities.and commercial agreements of foreigners with sovereign governments may be enforced on the international plane.
There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport.
There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law, but this effort has not materialized.
The Union of South American Nations serves the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.
The Andean Community of Nations is the first attempt to integrate the countries of the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969, and consists of four countries: Bolivia, Colombia, Ecuador and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries.
International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law, the Eclectic and the Legal positivism schools of thought.
The natural law approach argues that international norms should be based on axiomatic truths. 16th-century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.
In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentium , established by the consent of the community of nations on the basis of the principle of pacta sunt servanda , that is, on the basis of the observance of commitments. On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia.
The early positivist school emphasized the importance of custom and treaties as sources of international law. 16th-century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments.
The term "international law" is sometimes divided into "public" and "private" international law, particularly by civil law scholars, who seek to follow a Roman tradition.Roman lawyers would have further distinguished jus gentium , the law of nations, and jus inter gentes – agreements between nations. On this view, "public" international law is said to cover relations between nation-states, and includes fields such as treaty law, law of sea, international criminal law, the laws of war or international humanitarian law, international human rights law, and refugee law. By contrast "private" international law, which is more commonly termed "conflict of laws", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies. A further concept, more recently developing, is of "supranational law", on the law of supranational organizations. This concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective. Systems of "supranational law" arise when nations explicitly cede their right to make certain judicial decisions to a common tribunal. The decisions of the common tribunal are directly effective in each party nation, and have priority over decisions taken by national courts. The European Union is an example of an international treaty organization which implements a supranational legal framework, with the European Court of Justice having supremacy over all member-nation courts in matter of European Union law. A further frequently used term is "transnational law", which refers to a body of rules that transcend the nation state.
Nation-states observe the principle of par in parem non habet imperium , 'Between equals there is no sovereign power'. John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments...more ethical than legal in nature.'
Article 2 (1) of the UN Charter confirms this Sovereignty of Nations; no state is in subjection to any other state.
Also, since the bulk of international law is treaty law, binding only on signatories, then;
'If legislation is the making of laws by a person or assembly binding on the whole community, there is no such thing as international law. For treaties bind only those who sign them.'
Since states are few in number, diverse and atypical in character, unindictable, lacking a centralised sovereign power, and their agreements unpoliced and decentralised,then, says Wight, 'international society is not a society at all. The condition of international relations is best described as international anarchy;
'While in domestic politics the struggle for power is governed and circumscribed by law, in international politics, law is governed and circumscribed by the struggle for power. (This is why) international politics is called power politics... War is the only means by which states can in the last resort defend vital interests...the causes of war are inherent in power politics.'
On the subject of treaty law, Charles de Gaulle said this; 'Treaties are like pretty girls, or roses; they last only as long as they last.'
For Hans Morgenthau, international law is the weakest and most primitive system of law enforcement. Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies.A Monopoly on violence is what makes domestic law enforceable; but between nations, there are multiple competing sources of force. The confusion created by treaty laws, which resemble private contracts between persons, is mitigated only by the relatively small number of states. On the vital subject of war, it is unclear whether the Nuremberg trials created new law, or applied the existing law of the Kellogg-Briand pact.
Morgenthau asserts that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary.International law is also unpoliced, lacking agencies for enforcement. He cites a 1947 US opinion poll in which 75% of respondents wanted 'an international police to maintain world peace'; but only 13% wanted that force to exceed the US armed forces. Later surveys have produced similar contradictory results.
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