International Law
What is International Law?
History of International Law.
Types of International Laws.
Sources of International Laws.
Subjects of International Law.
Is international law really law.
International law is the set of rules generally regarded and accepted as binding in relations between states and 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 private citizens. National law may become international law when treaties delegate 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.
Beginnings
There was little scope for an international law in the period of ancient and medieval empires, and its modern beginnings coincide, therefore, with the rise of national states after the Middle Ages. Rules of maritime intercourse and rules respecting diplomatic agents (see diplomatic service) soon came into existence. At the beginning of the 17th cent., the great multitude of small independent states, which were finding international lawlessness intolerable, prepared the way for the favorable reception given to the De jure belli ac pacis [concerning the law of war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of international law. Though not formally accepted by any nation, his opinions and observations were afterward regularly consulted, and they often served as a basis for reaching agreement in international disputes. The most significant principle he enunciated was the notion of sovereignty and legal equality of all states. Other important writers on international law were Cornelius van Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel.
Historical development
International law reflects the establishment and subsequent modification of a world system founded almost exclusively on the notion that independent sovereign states are the only relevant actors in the international system. The essential structure of international law was mapped out during the European Renaissance, though its origins lay deep in history and can be traced to cooperative agreements between peoples in the ancient Middle East. Among the earliest of these agreements were a treaty between the rulers of Lagash and Umma (in the area of Mesopotamia) in approximately 2100 bce and an agreement between the Egyptian pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 bce. A number of pacts were subsequently negotiated by various Middle Eastern empires. The long and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also vital in the development of international law. In addition, basic notions of governance, of political relations, and of the interaction of independent units provided by ancient Greek political philosophy and the relations between the Greek city-states constituted important sources for the evolution of the international legal system.
Many of the concepts that today underpin the international legal order were established during the Roman Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the Romans to govern the status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In the Middle Ages, the concept of natural law, infused with religious principles through the writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–1274), became the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural law that applied to the relations between sovereign states. (Byers (2001)
After the collapse of the western Roman Empire in the 5th century ce, Europe suffered from frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a number of supranational sets of rules were developed to govern interstate relations, including canon law, the law merchant (which governed trade), and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island off the west coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of the printing press spurred the development of scientific, humanistic, and individualist thought, while the expansion of ocean navigation by European explorers spread European norms throughout the world and broadened the intellectual and geographic horizons of western Europe. The subsequent consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a set of rules to regulate their relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the person of the king and was later transformed into a principle of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary or representative forms of government. Sovereignty also acquired an external meaning, referring to independence within a system of competing nation-states. (Shaw, 2014)
Early writers who dealt with questions of governance and relations between nations included the Italian lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal adviser, and authority on Roman and feudal law. The essence of the new approach, however, can be more directly traced to the philosophers of the Spanish Golden Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–1546), who was particularly concerned with the treatment of the indigenous peoples of South America by the conquering Spanish forces, and Francisco Suárez (1548–1617) emphasized that international law was founded upon the law of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular school of thought in international law, published De jure belli libri tres (1598; Three Books on the Law of War), which contained a comprehensive discussion of the laws of war and treaties. Gentili’s work initiated a transformation of the law of nature from a theological concept to a concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the development of the field to an extent unequaled by any other theorist, though his reputation as the father of international law has perhaps been exaggerated. Grotius excised theology from international law and organized it into a comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained acceptance among the northern European powers that were embarking upon extensive missions of exploration and colonization around the world. (Shaw, 2014)
The scholars who followed Grotius can be grouped into two schools, the naturalists and the positivists. The former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the law of nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands, emphasized the actual practice of contemporary states over concepts derived from biblical sources, Greek thought, or Roman law. These new writings also focused greater attention on the law of peace and the conduct of interstate relations than on the law of war, as the focus of international law shifted away from the conditions necessary to justify the resort to force in order to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and commercial treaties. The positivist school made use of the new scientific method and was in that respect consistent with the empiricist and inductive approach to philosophy that was then gaining acceptance in Europe. Elements of both positivism and natural law appear in the works of the German philosopher Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to develop an approach that avoided the extremes of each school. During the 18th century, the naturalist school was gradually eclipsed by the positivist tradition, though, at the same time, the concept of natural rights which played a prominent role in the American and French revolutions was becoming a vital element in international politics. In international law, however, the concept of natural rights had only marginal significance until the 20th century.
Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the affairs of other states ideas that had been spread throughout the world by the European imperial powers. In the 20th century, however, positivism’s dominance in international law was undermined by the impact of two world wars, the resulting growth of international organizations e.g., the League of Nations, founded in 1919, and the UN, founded in 1945 and the increasing importance of human rights. Having become geographically international through the colonial expansion of the European powers, international law became truly international in the first decades after World War II, when decolonization resulted in the establishment of scores of newly independent states. The varying political and economic interests and needs of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of international law with new influences. (Shaw, 2014)
The development of international law both its rules and its institutions is inevitably shaped by international political events. From the end of World War II until the 1990s, most events that threatened international peace and security were connected to the Cold War between the Soviet Union and its allies and the U.S.-led Western alliance. The UN Security Council was unable to function as intended, because resolutions proposed by one side were likely to be vetoed by the other. The bipolar system of alliances prompted the development of regional organizations e.g., the Warsaw Pact organized by the Soviet Union and the North Atlantic Treaty Organization (NATO) established by the United States and encouraged the proliferation of conflicts on the peripheries of the two blocs, including in Korea, Vietnam, and Berlin. Furthermore, the development of norms for protecting human rights proceeded unevenly, slowed by sharp ideological divisions. (Byers (2001)
The Cold War also gave rise to the coalescence of a group of nonaligned and often newly decolonized states, the so-called “Third World,” whose support was eagerly sought by both the United States and the Soviet Union. The developing world’s increased prominence focused attention upon the interests of those states, particularly as they related to decolonization, racial discrimination, and economic aid. It also fostered greater universalism in international politics and international law. The ICJ’s statute, for example, declared that the organization of the court must reflect the main forms of civilization and the principal legal systems of the world. Similarly, an informal agreement among members of the UN requires that nonpermanent seats on the Security Council be apportioned to ensure equitable regional representation; 5 of the 10 seats have regularly gone to Africa or Asia, two to Latin America, and the remainder to Europe or other states. Other UN organs are structured in a similar fashion.
The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased political cooperation between the United States and Russia and their allies across the Northern Hemisphere, but tensions also increased between states of the north and those of the south, especially on issues such as trade, human rights, and the law of the sea. Technology and globalization—the rapidly escalating growth in the international movement in goods, services, currency, information, and persons—also became significant forces, spurring international cooperation and somewhat reducing the ideological barriers that divided the world, though globalization also led to increasing trade tensions between allies such as the United States and the European Union (EU).
Since the 1980s, globalization has increased the number and sphere of influence of international and regional organizations and required the expansion of international law to cover the rights and obligations of these actors. Because of its complexity and the sheer number of actors it affects, new international law is now frequently created through processes that require near-universal consensus. In the area of the environment, for example, bilateral negotiations have been supplemented and in some cases replaced by multilateral ones, transmuting the process of individual state consent into community acceptance. Various environmental agreements and the Law of the Sea treaty (1982) have been negotiated through this consensus-building process. International law as a system is complex. Although in principle it is “horizontal,” in the sense of being founded upon the concept of the equality of states one of the basic principles of international law in reality some states continue to be more important than others in creating and maintaining international law. (Shaw, 2014)
Development to World War I
The growth of international law came largely through treaties concluded among states accepted as members of the "family of nations," which first included the states of Western Europe, then the states of the New World, and, finally, the states of Asia and other parts of the world. The United States contributed much to the laws of neutrality and aided in securing recognition of the doctrine of freedom of the seas (see seas, freedom of the). The provisions of international law were ignored in the Napoleonic period, but the Congress of Vienna (see Vienna, Congress of) reestablished and added much, particularly in respect to international rivers and the classification and treatment of diplomatic agents. The Declaration of Paris (see Paris, Declaration of) abolished privateering, drew up rules of contraband, and stipulated rules of blockade. The Geneva Convention (1864) provided for more humane treatment of the wounded. The last quarter of the 19th century saw many international conventions concerning prisoners of war, communication, collision and salvage at sea, protection of migrating bird and sea life, and suppression of prostitution. Resort to arbitration of disputes became more frequent. The lawmaking conventions of the Hague Conferences represent the chief development of international law before World War I. The Declaration of London (see London, Declaration of) contained a convention of prize law, which, although not ratified, is usually followed. At the Pan-American Congresses, many lawmaking agreements affecting the Western Hemisphere have been signed.
Effect of the World Wars
In World War I, no strong nations remained on the sidelines to give effective backing to international law, and the concept of third party arbitration was again endangered; many of the standing provisions of international law were violated. New modes of warfare presented new problems in the laws of war, but attempts after the war to effect disarmament and to prohibit certain types of weapons (see war, laws of) failed, as the outbreak and course of World War II showed. The end of hostilities in 1945 saw the world again faced with grave international problems, including rectification of boundaries, care of refugees, and administration of the territory of the defeated enemy (see trusteeship, territorial). The inadequacy of the League of Nations and of such idealistic renunciations of war as the Kellogg-Briand Pact led to the formation of the United Nations as a body capable of compelling obedience to international law and maintaining peace. After World War II, a notable advance in international law was the definition and punishment of war crimes. Attempts at a general codification of international law, however, proceeded slowly under the International Law Commission established in 1947 by the United Nations.
History of International Law.
Types of International Laws.
Sources of International Laws.
Subjects of International Law.
Is international law really law.
International Law
International law is the set of rules generally regarded and accepted as binding in relations between states and 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 private citizens. National law may become international law when treaties delegate 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.
Much of international law is consent-based governance. This means that a state member of the international community is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct. This is an issue of state sovereignty. However, other aspects of international law are not consent-based but still are obligatory upon state and non-state actors such as customary international law and peremptory norms (jus cogens).
History of International Law
Beginnings
There was little scope for an international law in the period of ancient and medieval empires, and its modern beginnings coincide, therefore, with the rise of national states after the Middle Ages. Rules of maritime intercourse and rules respecting diplomatic agents (see diplomatic service) soon came into existence. At the beginning of the 17th cent., the great multitude of small independent states, which were finding international lawlessness intolerable, prepared the way for the favorable reception given to the De jure belli ac pacis [concerning the law of war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of international law. Though not formally accepted by any nation, his opinions and observations were afterward regularly consulted, and they often served as a basis for reaching agreement in international disputes. The most significant principle he enunciated was the notion of sovereignty and legal equality of all states. Other important writers on international law were Cornelius van Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel.
Historical development
International law reflects the establishment and subsequent modification of a world system founded almost exclusively on the notion that independent sovereign states are the only relevant actors in the international system. The essential structure of international law was mapped out during the European Renaissance, though its origins lay deep in history and can be traced to cooperative agreements between peoples in the ancient Middle East. Among the earliest of these agreements were a treaty between the rulers of Lagash and Umma (in the area of Mesopotamia) in approximately 2100 bce and an agreement between the Egyptian pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 bce. A number of pacts were subsequently negotiated by various Middle Eastern empires. The long and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also vital in the development of international law. In addition, basic notions of governance, of political relations, and of the interaction of independent units provided by ancient Greek political philosophy and the relations between the Greek city-states constituted important sources for the evolution of the international legal system.
Many of the concepts that today underpin the international legal order were established during the Roman Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the Romans to govern the status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In the Middle Ages, the concept of natural law, infused with religious principles through the writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–1274), became the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural law that applied to the relations between sovereign states. (Byers (2001)
After the collapse of the western Roman Empire in the 5th century ce, Europe suffered from frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a number of supranational sets of rules were developed to govern interstate relations, including canon law, the law merchant (which governed trade), and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island off the west coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of the printing press spurred the development of scientific, humanistic, and individualist thought, while the expansion of ocean navigation by European explorers spread European norms throughout the world and broadened the intellectual and geographic horizons of western Europe. The subsequent consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a set of rules to regulate their relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the person of the king and was later transformed into a principle of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary or representative forms of government. Sovereignty also acquired an external meaning, referring to independence within a system of competing nation-states. (Shaw, 2014)
Early writers who dealt with questions of governance and relations between nations included the Italian lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal adviser, and authority on Roman and feudal law. The essence of the new approach, however, can be more directly traced to the philosophers of the Spanish Golden Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–1546), who was particularly concerned with the treatment of the indigenous peoples of South America by the conquering Spanish forces, and Francisco Suárez (1548–1617) emphasized that international law was founded upon the law of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular school of thought in international law, published De jure belli libri tres (1598; Three Books on the Law of War), which contained a comprehensive discussion of the laws of war and treaties. Gentili’s work initiated a transformation of the law of nature from a theological concept to a concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the development of the field to an extent unequaled by any other theorist, though his reputation as the father of international law has perhaps been exaggerated. Grotius excised theology from international law and organized it into a comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained acceptance among the northern European powers that were embarking upon extensive missions of exploration and colonization around the world. (Shaw, 2014)
The scholars who followed Grotius can be grouped into two schools, the naturalists and the positivists. The former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the law of nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands, emphasized the actual practice of contemporary states over concepts derived from biblical sources, Greek thought, or Roman law. These new writings also focused greater attention on the law of peace and the conduct of interstate relations than on the law of war, as the focus of international law shifted away from the conditions necessary to justify the resort to force in order to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and commercial treaties. The positivist school made use of the new scientific method and was in that respect consistent with the empiricist and inductive approach to philosophy that was then gaining acceptance in Europe. Elements of both positivism and natural law appear in the works of the German philosopher Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to develop an approach that avoided the extremes of each school. During the 18th century, the naturalist school was gradually eclipsed by the positivist tradition, though, at the same time, the concept of natural rights which played a prominent role in the American and French revolutions was becoming a vital element in international politics. In international law, however, the concept of natural rights had only marginal significance until the 20th century.
Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the affairs of other states ideas that had been spread throughout the world by the European imperial powers. In the 20th century, however, positivism’s dominance in international law was undermined by the impact of two world wars, the resulting growth of international organizations e.g., the League of Nations, founded in 1919, and the UN, founded in 1945 and the increasing importance of human rights. Having become geographically international through the colonial expansion of the European powers, international law became truly international in the first decades after World War II, when decolonization resulted in the establishment of scores of newly independent states. The varying political and economic interests and needs of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of international law with new influences. (Shaw, 2014)
The development of international law both its rules and its institutions is inevitably shaped by international political events. From the end of World War II until the 1990s, most events that threatened international peace and security were connected to the Cold War between the Soviet Union and its allies and the U.S.-led Western alliance. The UN Security Council was unable to function as intended, because resolutions proposed by one side were likely to be vetoed by the other. The bipolar system of alliances prompted the development of regional organizations e.g., the Warsaw Pact organized by the Soviet Union and the North Atlantic Treaty Organization (NATO) established by the United States and encouraged the proliferation of conflicts on the peripheries of the two blocs, including in Korea, Vietnam, and Berlin. Furthermore, the development of norms for protecting human rights proceeded unevenly, slowed by sharp ideological divisions. (Byers (2001)
The Cold War also gave rise to the coalescence of a group of nonaligned and often newly decolonized states, the so-called “Third World,” whose support was eagerly sought by both the United States and the Soviet Union. The developing world’s increased prominence focused attention upon the interests of those states, particularly as they related to decolonization, racial discrimination, and economic aid. It also fostered greater universalism in international politics and international law. The ICJ’s statute, for example, declared that the organization of the court must reflect the main forms of civilization and the principal legal systems of the world. Similarly, an informal agreement among members of the UN requires that nonpermanent seats on the Security Council be apportioned to ensure equitable regional representation; 5 of the 10 seats have regularly gone to Africa or Asia, two to Latin America, and the remainder to Europe or other states. Other UN organs are structured in a similar fashion.
The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased political cooperation between the United States and Russia and their allies across the Northern Hemisphere, but tensions also increased between states of the north and those of the south, especially on issues such as trade, human rights, and the law of the sea. Technology and globalization—the rapidly escalating growth in the international movement in goods, services, currency, information, and persons—also became significant forces, spurring international cooperation and somewhat reducing the ideological barriers that divided the world, though globalization also led to increasing trade tensions between allies such as the United States and the European Union (EU).
Since the 1980s, globalization has increased the number and sphere of influence of international and regional organizations and required the expansion of international law to cover the rights and obligations of these actors. Because of its complexity and the sheer number of actors it affects, new international law is now frequently created through processes that require near-universal consensus. In the area of the environment, for example, bilateral negotiations have been supplemented and in some cases replaced by multilateral ones, transmuting the process of individual state consent into community acceptance. Various environmental agreements and the Law of the Sea treaty (1982) have been negotiated through this consensus-building process. International law as a system is complex. Although in principle it is “horizontal,” in the sense of being founded upon the concept of the equality of states one of the basic principles of international law in reality some states continue to be more important than others in creating and maintaining international law. (Shaw, 2014)
Development to World War I
The growth of international law came largely through treaties concluded among states accepted as members of the "family of nations," which first included the states of Western Europe, then the states of the New World, and, finally, the states of Asia and other parts of the world. The United States contributed much to the laws of neutrality and aided in securing recognition of the doctrine of freedom of the seas (see seas, freedom of the). The provisions of international law were ignored in the Napoleonic period, but the Congress of Vienna (see Vienna, Congress of) reestablished and added much, particularly in respect to international rivers and the classification and treatment of diplomatic agents. The Declaration of Paris (see Paris, Declaration of) abolished privateering, drew up rules of contraband, and stipulated rules of blockade. The Geneva Convention (1864) provided for more humane treatment of the wounded. The last quarter of the 19th century saw many international conventions concerning prisoners of war, communication, collision and salvage at sea, protection of migrating bird and sea life, and suppression of prostitution. Resort to arbitration of disputes became more frequent. The lawmaking conventions of the Hague Conferences represent the chief development of international law before World War I. The Declaration of London (see London, Declaration of) contained a convention of prize law, which, although not ratified, is usually followed. At the Pan-American Congresses, many lawmaking agreements affecting the Western Hemisphere have been signed.
Effect of the World Wars
In World War I, no strong nations remained on the sidelines to give effective backing to international law, and the concept of third party arbitration was again endangered; many of the standing provisions of international law were violated. New modes of warfare presented new problems in the laws of war, but attempts after the war to effect disarmament and to prohibit certain types of weapons (see war, laws of) failed, as the outbreak and course of World War II showed. The end of hostilities in 1945 saw the world again faced with grave international problems, including rectification of boundaries, care of refugees, and administration of the territory of the defeated enemy (see trusteeship, territorial). The inadequacy of the League of Nations and of such idealistic renunciations of war as the Kellogg-Briand Pact led to the formation of the United Nations as a body capable of compelling obedience to international law and maintaining peace. After World War II, a notable advance in international law was the definition and punishment of war crimes. Attempts at a general codification of international law, however, proceeded slowly under the International Law Commission established in 1947 by the United Nations.
Types of International Laws
Public international law
Public international law, which governs the relationship between states and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law.
Private international law
Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
Supranational law
Supranational law or the law of supranational organizations, which 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.
Traditional Branches
The two traditional branches of the field are:
jus gentium – law of nations
jus inter gentes – agreements between nations
Sources of International Law
Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed. Rules are extracted and analyzed from the sources.
But Briefly considers customs and reasons as the main sources of IL.
Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of International law.
The law applicable in ICJ, sec 38(1 and 2) On the basis of Article 38 of ICJ Statute, distinct sources can be identified:
1. International conventions/treaties
2. International customs
3. General principles of law
4. Judicial decisions and writings of the publicists
5. Reason and equity
1. International Treaties
International Treaties are known by a variety of Conventions/ Treaties terms-conventions, agreements, pacts, general acts, charters, statutes, The creation of written agreements whereby declarations and covenants. the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.
Types International treaties can be broadly of international treaties divided into two types:
i. Law making treaties (L)-Universal or general relevance.
ii. Treaty contracts (T)- between two or small number of countries.
It is conducted between many.
i. Law making treaties Lawmaking treaties states and creates general rules binding the states or conventions are the main source of international law since, the Examples: a. The Hague basis of all international law is consent. Convention of 1899 and 1907 (on law of war and neutrality), b. The Geneva Protocol of 1925 (on prohibited weapons), c. The Genocide Convention of 1948, deals with a special
ii. Treaty Contracts matter between contracting states only Example: Indo Nepal treaty on Create trade and transit, Indo Nepal treaty on Peace and Friendship. But is also source of particular law between the signatories. universal rule also. Example: . Briand Kellogg Pact 1928 (a treaty for the renunciation of war between USA and France became so attractive that other states also subscribe to its principle of non use of force, so if more and more states consent to the rule of treaty contract universal rule is established.
2. Customs
The article 38 of the statute of the International Court of Justice recognizes The ICJ’s “International Customs”, as a source of international law. Statute refers to international customs, as “evidence of a general practice accepted as law”.
Elements for making custom as international law
1. Duration of state practice
2. Uniformity and consistency in practice
3. Generality in practice
4. Opinio juris – (Acceptance of practice as law)
Some views regarding customary Can customary law be significant in present world? 1)Opinion laws customs can’t be significant today as source of international law because it is too clumsy and slow moving to accommodate the evolution of International law. 2)Opinion custom is relevant in present day also as it is the dynamic process of law creation and more important than treaties since it is of universal application.
3. The general principles of law
Principles of Law which have got recognition from all the states and by all the legal The general principles of law are based on systems of the world. They include basic principles of law which are justice and equity. They provide a mechanism to address international issues indisputable. not already subject either to treaty provisions or to binding customary rules.
Why general principles of law are included? reason why this source is included in ICJ because a situation may arise when there is absence of law relating exactly to the point. International law has no method of legislating to provide rules to neither it follows principle of past regulate new situations precedents. Hence, the provision of general principle was established as a source of law to fill the gap and solve the problem of non liquet (a situation when the court refuses to settle disputes on the ground that rules are not available).
Case involving general principle of law Permanent Court of International Justice (PCIJ) in Mosul Boundary Case (1925) applied the principle of natural justice that No one can be judge in his own suit
4.Judicial decisions and Writings of the publicists
Article 38 recognizes a judicial decisions as a subsidiary source of Article 59 of the Statute international law but not an actual source of ICJ provides that: The decision of the court haves no binding force While except between the parties in respect of that particular case the doctrine of precedent does not exist in international law, one still finds that states in disputes and textbook writer quote judgments of the permanent court and the ICJ as authoritative decisions.
The laws of a specificJudicial decisions of the municipal courts state and decisions of the municipal courts are not in general, source of international law, since, they do not create legally binding obligations for other state.
Writings of the publicists Article 38 of statute of ICJ recognizes ‘ the (subsidiary source) teachings of the most highly qualified publicists of the various nations’ as a subsidiary means for the determination of rules of Writers such as Gentilli, Grotius, Vatted etc, were international law. the supreme authorities of the 16th and 18th centuries and determined The variousthe scope, form and content of international law. international judicial and arbitral bodies in considering their decisions consult and quote the writings of the teaching juristic authorities, when need arises.
5. Reason and equity
It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto. Example: In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada
Subject of International law
On the national plan, there are a number of legal subjects such as corporations, State institutions, and individuals. Individuals are the primary subjects of law in the national systems.
On the international plane, the primary subjects are States. Traditionally, states and insurgents have been the only subjects of international law.
States – in addition to controlling a territory, they exercise lawmaking and executive functions; they have full legal capacity (ability to be vested with powers, rights and obligations).
Insurgents – they come into being through their struggle against the state to which they belong. Because insurgents are a destabilizing factor, States are reluctant to accept them or take them into account, unless they can show some of the attributes of sovereignty. They acquire power through force, their existence is by definition provisional: they either prevail and turn into fully fledged States, or are defeated and disappear.
After WWII, several new subjects of international law have emerged, namely international organizations, national liberation movements and individuals. They lack permanent and stable authority over a territory, so unlike States, all other international subjects have limited legal capacity (do not have a full spectrum of rights and obligations), which also means a limited legal capacity to act (i.e. to enforce their rights).
States are few and very different, which is a complicating factor and explains in part the weakness of international law. The lack of homogeneity makes the finding of a common ground and the reaching of a consensus rather difficult. Another complicating factor is the fact that unlike national law (which contains a set of rules dealing with the prerequisites for a acquiring legal personality), international law lacks a set of detailed rules regarding the creation of states. Such rules can be inferred from custom.
Is international law really law?
A vast network of international law and dozens of international organizations make globalization possible. Treaties and other types of agreements among countries set rules for international trade and finance, such as the GATT; foster cooperation on protecting the environment, such as the Kyoto Protocol; and establish basic human rights, such as the International Covenant on Civil and Political Rights. Meanwhile, among many international organizations, the United Nations facilitates international diplomacy, the World Health Organization coordinates international public health and protection, and the International Labor Organization monitors and fosters workers’ rights around the world.
The scope and authority of international law have thus expanded dramatically during the era of globalization. Historically, international law addressed only relations between states in certain limited areas (such as war and diplomacy) and was dependent on the sovereignty and territorial boundaries of distinct countries (generally referred to as “states”).
But globalization has changed international law in numerous ways. For example, as globalization has accelerated, international law has become a vehicle for states to cooperate regarding new areas of international relations (such as the environment and human rights), many of them requiring states to rethink the previous notions of the inviolable sovereign state. The continued growth of international law is even more remarkable in this sense, since states, having undoubtedly weighed the costs and benefits of the loss of this valuable sovereignty, have still chosen to continue the growth of international law.
Because of the need for enhanced international (or as some call it, “transnational”) cooperation, globalization has therefore given new meanings to classic issues. Questions of the authority of a country within its own borders—that is, its state sovereignty—the role of the individual in the international community of nation-states, and the authority of international organizations, have all evolved in light of the forces of globalization.
The following Issue in Depth describes the sources of international law and the subjects it covers; the international organizations that implement international law; and some of the controversial aspects related to international law and organizations as well as their relationships to state sovereignty.
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