International law deals with the relationships between states, or between persons or entities in different states. It sub-divides into "public international law", and "private international law". When used without an adjective, "international law" generally refers to "public international law", and this article concentrates on that meaning.
Historical basis for international law
Throughout recorded history, rulers of states, kingdoms, or other political entities have entered into treaties with each other for purposes of ending or averting violent conflict. These treaties remained in force until they were superseded by subsequent events, which could take the form of violations of the treaty that effectively rendered it void; new conflicts that made it irrelevant; or new treaties that established a new relationship.
In addition, states adopted a number of spoken or unspoken conventions that dictated their interaction with each other. These range from rules of chivalry on the battlefield to diplomatic protocol.
Finally, the introduction of the rule of law and attendant structures in states provided a common framework for resolving legal issues between and among states.
The First Geneva Convention in 1864 convened European states to establish basic laws of war in Europe. The Paris Peace Conference, 1919 represented the first broad attempt at creating global, multilateral treaties, embodied in the formation of the League of Nations.
The trend toward multilateral commitments has accelerated since then, and it is now meaningful to study international law as a means toward resolving conflicts among states.
The scope of international law
The value and authority of international law is entirely 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. The formation of the United Nations opened for a means for the world community to enforce international law upon members that violate its charter.
Traditionally, international law had states as its sole subjects. With the proliferation over the last century of international organizations, 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 within international law
As a philosophical, political, and constitutional matter, sovereign states derive their autonomy through inherent legitimacy rather than a decree by the international community. States may therefore choose to voluntarily enter into commitments under international law, but they will not accept any legislative process outside their own consent. It follows that they will follow their own counsel when it comes to interpretation of their commitments under international law.
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 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 dominant value.
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.
Sources of international law
International law knows 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
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 posseses 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.
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 Council of Constance (1414) - Pawel Wlodkowic - rector of Jagiellonian University (Cracow,Poland), theologist, 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.
In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation:
- Self-governing, autonomous states existed.
- Almost all of them were governed by monarchs.
- England and Polish-Lithuanian Commonwealth had a constitutional monarchy.
- Not all monarchs were hereditary: the Holy Roman Emperor and the ruler of Polish-Lithuanian Commonwealth were elected.
- Switzerland, the Netherlands, and many Italian city-states were republics.
- After the Thirty Years' War, which ended with the Peace of Westphalia, there was relative stability in Europe for 130 years (until the 1789 French Revolution).
- The Peace of Wesphalia is often cited as being the birth of the modern nation-states, establishing states as sovereign answering to no-one within its own borders.
- Land, wealth, trading rights, and monopolizing the new lands were the topics of war.
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.
The Dominican professor Francisco de Vitoria (in Latin Franciscus de Victoria) of theology at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536. Charles V, Holy Roman Emperor, protested against the friar, but in 1542 new laws put the natives under protection of the Spanish crown. Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.)
The French monk Emeric Cruce (1590-1648) 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 (1618 - 1648), 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.
Hugo Grotius (or Huig de Groot) (1583-1645) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau, son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum (Latin for "Free seas"), in which he challenged the claims and attempts of England, Spain, and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law. It was published only two years after The New Cyneas.
Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine_of_Hippo). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria:
- It can be to repel an invasion.
- It can be to punish an insult to God.
- There has to be a just cause (one of the two mentioned above).
- It has to be declared by the proper authorities.
- It must possess moral intention.
- It must have a chance of success.
- It must abstain from brutal practices.
- Its end result must be proportional to the means used.
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, U.S. 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 all international law to follow.
Related topics: international community, world government, nationality, terrorism, environmental agreements, international auxiliary language, state, territorial integrity.
Last updated: 06-01-2005 23:20:49