International law

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2005-12-06 09:08
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Definition

[1] [2]

The [Merriam Webster Inc. 2013 definition of 'international law'](http://www.merriam-webster.com/dictionary/international law International Law) suggests that the term refers princiaply to agreements "regarded and accepted as binding in relations between states".FN1 If adopting this definition, however, one must carefully differentiate between binding forms of 'law' another other aspects of 'jurisprudence'.

FN1: Merriam-Webster.com. Springfield: Merriam-Webster, Inc. Available online at: http://www.merriam-webster.com/dictionary/international law [Accessed: 22 October 2013].

The full definition given by Merriam-Webster is as follows:

"A body of rules, norms, and standards generally regarded and accepted as binding in relations between states / nations in their relations with each other.

International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens, and that it is primarily a means of consent-based governance."

Branches of International Law

The two traditional branches of the field of international law are:

  1. jus gentium — law of nations
  2. jus inter gentes — agreements among nations

The two traditional Western (Roman-derived) branches of International Law are:[3] because jus inter gentes includes internationally recognized human rights.

International law comprises distinct legal disciplines, namely:

International Law as a Theoretical Construct

...

[3] State parties to international law, however, are sovereign entities, with "sovereign" being defined as posessing "supreme power or authority." Given this contradiction, nations have at times abrogated "International Laws" when they considered doing so in their national interest. [3]

The is a concept of [[World Law]], which signifies the evolution international law, taking 'the global good' as it sovereign. Initial steps in this direction include certain systems of supra-national law, but a true realization of a system akin to "World Law" may depend on the [[concomitant]] evolution of human awareness of people as inter-connected planetary citizens. [3]

...

The General Assembly is the main deliberative body of the United Nations. Many multilateral treaties are adopted by it and subsequently opened for signature and ratification by member States of the United Nations.[4]

The General Assembly has adopted a number of multilateral treaties throughout its history, including:[4]

A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights. While international treaties and customary law form the backbone of international human rights law other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels.[5]

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.[6]

Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level [7]

Supranational law

Supranational law is a form of international law, based on the limitation of the rights of sovereign nations between one another. It is distinguished from public international law, because in supranational law, nations explicitly submit their right to make judicial decisions by treaty to a set of common tribunal. The United Nations Security Council and subordinate organizations such as the International Court of Justice are the only globally accepted supranational tribunals.

American supranational law

The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was the first supranational agreement where 13 sovereign states were unified in a common government, which later became the United States of America. The central government proved too weak to manage the growing economy as the sovereign states incurred national debts and independently managed their national currencies without central coordination. The supranational government was terminated and the sovereign states were united into a unified nation by the United States Constitution in 1785. European Union supranational law[edit]

European Union law

European Union law was the next example of a supranational legal framework. In the EC, sovereign nations have pooled their authority through a system of courts and political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not. According to the European Court of Justice in the early case, 26/62, of NW Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Admniistratie der Belastingen [1963] ECR 1, (often known as just Van Gend en Loos) it constitutes "a new legal order of international law":

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community."[8]

The Treaty of Lisbon is an international agreement that amends the two treaties which comprise the constitutional basis of the European Union that entered into force on 1 December 2009. It solidified human rights for individuals in all but three members. The Charter of Fundamental Rights of the European Union interpreted by the European Court of Justice does not to apply fully to the United Kingdom, Poland, and the Czech Republic by the British Protocol.

Public international law

Main article: Public international law

Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either: [3] [9] Treaties are the strongest and most binding type because they represent consensual agreements between the countries who sign them. Yet as stated in the Statute of the International Court of Justice (ICJ):[10] More than [http://treaties.un.org/ 500 multilateral treaties] have been deposited] with the Secretary-General of the United Nations.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

...

The international community has long aspired to create a permanent international court to try the most serious international crimes, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.[4] It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of obligation (opinio juris); Acts must be taken by a significant number of States and not be rejected by a significant number of States." A marker of customary international law is consensus among states exhibited both by widespread conduct and a discernible sense of obligation.

A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. Examples include various international crimes; a state which carries out or permits slavery, genocide, war of aggression, or crimes against humanity is always violating customary international law.

Other examples accepted or claimed as customary international law include the principle of non-refoulement, immunity of visiting foreign heads of state, and the right to humanitarian intervention.

Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.

State practice

When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of ''opinio juris''.[11] A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made.[12] It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organisations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation.[13]

The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant".[14] Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected,[15] and an absence of substantial dissent.[16] There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.[17]

Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.[18]

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule,[19] either as a member of a regional group[20] or by virtue of its membership of the international community.[21] It is not easy for a single state to maintain its dissent. Also, rules of the ''jus cogens'' have a universal character and apply to all states, irrespective of their wishes.[22]

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule.[23] Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.

''Opinio juris''

A wealth of state practice does not usually carry with it a presumption that ''opinio juris'' exists. “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”[24]

In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary ''opinio juris'' was lacking.[25]

Although the ICJ has frequently referred to ''opinio juris'' as being an equal footing with state practice,[26] the role of the psychological element in the creation of customary law is uncertain...

''Jus cogens''

A peremptory norm or ''jus cogens'' (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of ''jus cogens'' is enshrined in Article 53 of the Vienna Convention on the Law of Treaties:

:For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.[27]

Rules of ''jus cogens'' generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.

The evidence supporting the emergence of a rule of ''jus cogens'' will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, ''jus cogens'' could be thought of as a special principle of custom with a superadded ''opinio juris''. The European Court of Human Rights has stressed the international public policy aspect of the ''jus cogens''.

Treaties as law

Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. They can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.

Treaties as custom

Some treaties are the result of codifying existing customary law, such as laws governing the global commons, and ''jus ad bellum''. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims.

Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:

General principles of law

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a ''non liquet'' by reference to the general principles.

In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent, but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organisations,[31] although today the principles are regarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings.[32] The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations".[33] Similarly, there have been frequent references to equity.[34]} It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate ''contra legem'').[35] This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.[36]

Judicial decisions and juristic writings

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to case law and to legal literature.

Judicial decisions

The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law.

There is no rule of ''stare decisis'' in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case.[37] Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.

The International Court of Justice will often consider the draft Articles on international law published by the International Law Commission and the General Assembly resolutions as indicative of customary international law.

Juristic writings

Article 38(1)(d) of the ''International Court of Justice Statute'' states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilised by the United States Supreme Court in ''The Paquete Habana'' case (175 US (1900) 677 at 700-1).

Sources

The [Merriam Webster Inc. 2013 definition of 'international law'](http://www.merriam-webster.com/dictionary/international law International Law) suggests that the term refers princiaply to agreements "regarded and accepted as binding in relations between states".FN1 If adopting this definition, however, one must carefully differentiate between binding forms of 'law' another other aspects of 'jurisprudence'.

FN1: Merriam-Webster.com. Springfield: Merriam-Webster, Inc. Available online at: http://www.merriam-webster.com/dictionary/international law [Accessed: 22 October 2013].

==External links==

Source notes