Providing a constitution for public international law, the United Nations was conceived during World War II
'Public international law' concerns the structure and conduct of
states and
international organizations. To a lesser degree, international law also affects
multinational corporations and
individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement. Public international law has increased in use and importance vastly over the twentieth century, due mainly to the increase in
global trade,
armed conflict, environmental deterioration on a worldwide scale,
human rights violations, rapid and vast increases in international transportation and a boom in global communications.
Public international law is sometimes called the "'law of nations'". It should not be confused with "''
private international law''", which is concerned with the resolution of
conflict of laws. In its most general sense, international law "consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations ''
inter se'', as well as with some of their relations with persons, whether natural or juridical."
[1]
The scope of public international law
Public 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.
Whilst
municipal law is hierarchical or vertical in its structure (meaning that a
legislature enacts binding
legislation), international law is horizontal in nature. This means that all states are
sovereign and theoretically 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".
[2]
Breaches of international law raise difficult questions for lawyers. 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.
Traditionally,
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.
Fundamental conflicts
The 17th, 18th and 19th centuries saw the growth of the concept of a "
nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state.
Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments.
As the 20th century progressed, a number of violent armed conflicts, including
World War I and
World War II, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, a vehicle for the application of international law was found in the creation of the United Nations, an international law making body, and new international criminal laws were applied at the
Nuremberg trials. Over the past fifty years, more international laws and law making bodies have been created.
Many people feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in the light of international law and standards (see
world government for trends and movements leading in this direction). A number of states, notably the
United States (but also
China,
Russia and
India), vehemently oppose this interpretation, maintaining that sovereignty is the only true international law and that states have free rein over their own affairs (see the
Supremacy Clause of the
U.S. Constitution). Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a relatively new area of law its development is uncertain and its relevance and propriety is hotly disputed.
Sources
Main articles: Sources of international law
Public international law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the
International Court of Justice). International treaty law 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 (and they are also explicitly mentioned as such in Art. 38 of the Statute of the International Court of Justice). 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.
Interpretation
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.
Insofar as treaties are concerned, 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, a restrictive interpretation, which bases itself on the "ordinary meaning" of the text; that approach assigns considerable weight to the actual text.
★ The subjective approach, which takes into consideration i. the idea behind the treaty, ii. treaties "in their context", and iii. what the writers intended when they wrote the text.
★ A third approach, which 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
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 than 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.
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, and is, by law, limited to the territory of the state that is under attack.
Enforcement by international bodies
Main articles: International legal system
Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the
General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "
Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council, owing to a negative vote of a permanent member, failed to act (the resolution was initiated by the United States in 1950 as a means of circumventing possible Soviet vetoes). It could call for other collective measures (such as economic sanctions) given a situation constituting the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions.
They can also be raised in the
Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.
It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the
International Court of Justice in its advisory opinion on
Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.
States can also, upon mutual consent, submit disputes for arbitration by the
International Court of Justice (ICJ), located in
The Hague,
Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings.
The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the 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 public international lawyers. As of
2005, there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.
Though states (or increasingly,
international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the
International Covenant on Civil and Political Rights have an optional
protocol that allows individuals who have had their rights violated by member states to petition the international
Human Rights Committee.
History
Main articles: History of public international law
Through the ages a code developed for the relations and conduct between nations. Even when nations were at
war,
envoys were often considered immune to violence.
The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the
Renaissance in
Europe.
In the
Middle Ages, it had been considered the obligation of the
Church to mediate in international disputes. During the
Council of Constance (1414)
Pawel Wlodkowic,
rector of
Jagiellonian University (
Kraków,
Poland), theologian, lawyer and diplomat, presented the theory that all, including
pagan, nations have right to self-govern and to live in peace and possess their land.
At the beginning of the 17th century, several generalizations could be made about the political situation:
# Self-governing, autonomous states existed.
# Almost all of them were governed by monarchs.
##The
Peace of Westphalia is often cited as being the birth of the modern nation-states, establishing states as sovereigns answering to no-one within its own borders.
# Land, wealth, and trading rights were often the topics of wars between states.
Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the
Pope and the
Roman Catholic Church gave rise to the need for new generally-accepted codes in Europe.
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.
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, because of political wrangling in the
United States 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 much international law to follow.
Modern international law is often affirmed as the product of modern European civilization.
The seafaring principalities of
India established legal rules for ocean navigation and regional commerce.
The Greek system of independent
city-states bore a close resemblance to contemporary nation-state system. The
Aetolian and
Achaean leagues of the
3rd century BC represented early organisational efforts at international cooperation and facilitated the development of arbitration as a dispute settlement technique.
International legal theory
Natural law
The intellectual seeds of modern international law germinated in the
16th and
17th centuries, when the influence of the
Roman Catholic Church in international affairs gradually weakened. Many early international legal theorists were concerned with
axiomatic truths thought to be reposed in
natural law. Among the early natural law writers,
Francisco de Vitoria,
Dominican professor of
theology at the University of
Salamanca, examined the question of
just war and Spanish authority in the
Americas. He did so while
Spain was at the height of its power, after the violent Spanish conquest of
Peru in
1536.
Eclectic school
Central in the development of modern international law was
Hugo Grotius a
Dutch theologian,
humanist and
jurist. In his principal work ''De jure Belli ac Pacis Libri Tres'' ("Three Books on the Law of War and Peace";
1625), Grotius claimed that nations as well as persons ought to be governed by universal principle based on
morality and
divine justice. Much of Grotius's content drew from the
Bible and from classical history (
just war theory of
Augustine of Hippo). Drawing also from domestic
contract law, he also noted that relations between polities were governed by ''
jus gentium'', the law of peoples, which had been established by the consent of the community of nations. (See ''
pacta sunt servanda'').
The fundamental facets of the Grotian or
eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became definitive to international law in Europe. These principals were recognised in the
Peace of Westphalia and became the foundation for the treaties of
Osnabrück and
Münster.
Another eclectic thinker,
German philosopher
Christian von Wolff, contended that the foundation for international community should come as a world superstate (''civitas maxima''), having authority over the component member states. This view was rejected by the
Swiss diplomat
Emmerich de Vattel, who favoured a rationale of equality of states as articulated by
18th century natural law. Vattel suggested in his major work ''Le droit des gens'' that the law of nations was comprised of custom and law on the one hand, and natural law on the other.
Legal positivism
The early positive school emphasized the importance of custom and treaties as sources of international law. Among the early positivists was
Alberico Gentilis, a professor of
civil law at
Oxford who used historical examples to posit that positive law (''jus voluntarium'') was determined by general consent. Another professor at Oxford,
Richard Zouche, published the first manual of international law in
1650.
In the
18th century legal positivism became popular and found its way into international legal philosophy. The principal figure among 18th century positivists was
Cornelius van Bynkershoek, a celebrated Dutch jurist who asserted that the bases of international law were customs and treaties commonly consented to by various states. A second positivist,
John Jacob Moser was a prolific German scholar who emphasized the importance of state practice in international law. A contemporary German scholar,
Georg Friedrich von Martens, published the first systematic manual on positive international law, ''Precis du droit des gens moderne de l'Europe''.
The growth of
nationalism and
Hegelian philosophy in the
19th century pushed natural law farther from the legal realm.
Commercial law became nationalized into
private international law, distinct from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring
rationality to
morality and
ethics. The
Congress of Vienna in
1815 marked formal recognition of the political and international legal system based on the conditions of Europe.
Branches of public international law
★
International criminal law
★ The law pertaining to
use of force
★
International human rights law
★
International Humanitarian Law
★
Law of the sea
★
Diplomatic law
★
Consular law
★
Law of State Responsibility
★
International Environmental Law
★
International trade law
★
International Space Law
★ International
Aviation law
Notes
1. Columbia Law School, McKeever, 2003 — Definition of International Law
2. Greig, D. W., ''International Law'', 2nd edn (Butterworths: London, 1976)
References
★ Osmanczyk, Edmund, ''The encyclopedia of the United Nations and international relations'' , Taylor & Francis, 1990
★ Lawson, Edward, and Mary Lou Bertucci, '' Encyclopedia of human rights'' , 2nd ed., Taylor & Francis, 1996
★ Shaw, Malcom N., ''International Law'', 5th ed., Cambridge University Press, 2003
See also
★
International Law Campaign
★
Diplomatic recognition
★
Environmental agreements
★
International community
★
International Court of Justice
★
International Criminal Court
★
International Criminal Tribunal for the Former Yugoslavia
★
International Criminal Tribunal for Rwanda
★
International Labour Organization
★
Laws of war
★
Nationality
★
Non-Intervention
★
Chapeau
★
Hans Kelsen
★
Saskia Sassen
★
Sources of international law
★
State
★
Territorial integrity
★
Terrorism
★
Third World Approaches to International Law
★
UNIDROIT
★
United Nations
★
University for Peace
★
World government
★
List of treaties
★
List of international public law topics
★
United Nations Treaty Collection
★ WORLD Law Direct
[1]
★
International Law Details
★
International Law, Democratic Accountability and Moral Diversity
External links
★
A Brief Primer on International Law With cases and commentary. Nathaniel Burney, 2007.
★
Official United Nations website
★
Official UN website on International Law
★
Official website of the International Court of Justice
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