I | INTRODUCTION |
International
Law, principles, rules, and standards that govern nations and other
participants in international affairs in their relations with one another.
International law is the law of the international community. Most international
law consists of long-standing customs, provisions agreed to in treaties, and
generally accepted principles of law recognized by nations. Some international
law is also created by the rulings of international courts and
organizations.
The purposes of international law include
resolution of problems of a regional or global scope (such as environmental
pollution or global warming), regulation of areas outside the control of any one
nation (such as outer space or the high seas), and adoption of common rules for
multinational activities (such as air transport or postal service).
International law also aims to maintain peaceful international relations when
possible and resolve international tensions peacefully when they develop, to
prevent needless suffering during wars, and to improve the human condition
during peacetime.
Enforcement of international law is often
difficult because nations are sovereign (independent) powers that may put their
own interests ahead of those of the international community. In addition, the
mechanisms of enforcement are young and not well developed. Enforcement may be
effectively achieved, however, through the actions of individual nations,
agencies of international organizations such as the United Nations (UN), and
international courts. The United Nations Security Council can authorize economic
sanctions, diplomatic sanctions, or military force to maintain or restore
international peace and security.
International law began as a system governing
the relations among sovereign states, and states have always been the primary
legal entities affected by international law. As the global system has become
more complex, however, international law has come to recognize and regulate
international organizations, businesses, nonprofit entities, and individuals.
The emergence of international human rights law and, more recently,
international criminal law reflects the fact that individuals today are direct
subjects of international law in certain respects.
II | ORIGINS |
The need for rules of conduct between
independent political entities developed along with government in ancient times.
Early civilizations established rules governing the conduct of hostilities, the
making and observance of treaties, and the treatment of foreign traders,
travelers, and diplomats. These rules were often based on ritual and custom. The
oldest known treaty, preserved in an inscription on a stone monument, is a peace
treaty between two city-states of Sumer, dating from about 2500 bc. The empires of the ancient Middle
East concluded a considerable number of treaties between 2000 and 1000 bc concerning topics still debated
today, such as the extradition of fugitives and the creation of military
alliances.
Later civilizations further developed tenets
of international law. Jewish law as set forth in the Old Testament in the Book
of Deuteronomy contains prescriptions for the mitigation of warfare, notably
prohibitions against the killing of women and children. The Greek city-states
had an elaborate treaty system governing many aspects of their mutual relations.
In Asia the political units of ancient India and China, during certain periods,
also developed and applied international law.
Beginning with the era of the Roman Republic
(509 to 27 bc), the Romans made
significant contributions to the evolution of international law. They developed
the idea of a jus gentium, a body of laws designed to govern the
treatment of aliens (noncitizens) subject to Roman rule and the relations
between Roman citizens and aliens. They recognized in principle the duty of a
nation to refrain from engaging in warfare without a just cause and originated
the idea of a just war.
Modern international law began to develop with
the rise of national states in Europe after the 15th century, when the basic
ideas of national territory and jurisdiction were established. In 1625, building
on the work of previous legal writers, the Dutch jurist Hugo Grotius published
his celebrated treatise De Jure Belli ac Pacis (On the Law of War and
Peace). Grotius argued that existing customs governing the relations between
nations had the force of law and were binding unless contrary to natural justice
or the law of nature (natural law), an immutable higher law governing all human
conduct. Grotius’s influence on international affairs and the settlement of wars
was great, and he is sometimes called the father of modern international law.
His ideas became the cornerstone of the international system as established by
the Peace of Westphalia (1648), a treaty that ended the Thirty Years’ War.
Other scholars and statesmen further described
and developed the basic rules of international law, among them the Dutch jurist
Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel. Vattel’s
book, Le droit des gens (1758; Law of Nations), greatly influenced the
framers of the Constitution of the United States with its ideas of natural law
governing the behavior of states. Over time scholars gave increasing emphasis to
the idea of state sovereignty, so that by the end of the 19th century the
theoretical foundation of international law had shifted from natural law to a
strictly consensual approach known as positivism. Positivism claims that
each nation is bound only by the international rules that it freely accepts to
limit its otherwise unlimited freedom of action. The clash between positivists
and adherents of natural law continues today. Conflict is most pronounced over
the issue of whether there are fundamental “higher norms” of international law,
a principle called jus cogens, that sovereign states are obliged to
respect.
III | THE MODERN SYSTEM |
Modern international law stems from three
main sources: treaties, customs, and the generally accepted principles of law
derived from national legal systems throughout the world. International
organizations also play an important role in the formation of international
law.
A | Treaties |
Treaties are written agreements between
two or more sovereign states. International organizations may also be given the
capacity to make treaties, either with sovereign states or other international
organizations. Treaties may be known by many other names—for example, agreement,
convention, protocol, pact, and covenant—but the name chosen generally does not
affect the legal status of the agreement. As long as the parties intend the text
to be binding, it is a treaty. Treaties may incorporate rules of custom or
develop new law.
The present system of international law
remains largely consensual and centered on the sovereign state. It is within the
discretion of each state to participate in the negotiation of, or to sign or
ratify, any international treaty. Likewise, each member state of an
international organization such as the UN is free to ratify any convention
adopted by that organization. Treaty law thus is created by the express will of
states.
Treaties and conventions were, until the
20th century, usually bilateral (between two nations), but some multilateral
treaties resulted from international conferences held in the 19th century,
before permanent international organizations were created. Such conferences
played an important part in the development of the international legal system.
Noteworthy examples include the Congress of Vienna, which through its Final Act
of 1815 reorganized Europe after the defeat of Napoleon and also contributed to
the body of international law. It established rules for diplomatic procedure and
the treatment of diplomatic envoys. On the urging of Britain, it also included a
general condemnation of the slave trade. The Conference of Paris (1856) was
convened to terminate the Crimean War. It also adopted the Declaration of
Maritime Law that abolished privateering (the use of private ships during war)
and letters of marque (licenses given to private citizens to arm ships and
attack enemy merchants), modernized the rights of neutrals during maritime war,
and required blockades to be effective. The Declaration of Paris also initiated
the practice of allowing nations other than the original signatories to accede
(become a party to) to an agreement.
In 1864 a conference convened in Geneva,
Switzerland, at the invitation of the Swiss government. The conference approved
a convention for the proper treatment of wounded soldiers on the battlefield and
the protection of medical personnel; many nations subsequently acceded to this
convention, the first Geneva Convention. The peace conferences held in 1899 and
1907 in The Hague, the Netherlands, resulted in a number of conventions designed
to avoid or mitigate the rigors of war. The 1899 conference adopted a Convention
for the Pacific Settlement of International Disputes, which created the
Permanent Court of Arbitration in The Hague to settle disputes between nations
(see Hague Conferences).
B | Customary Law |
Customary international law is unwritten
and derives from the actual practices of nations over time. To be accepted as
law, the custom must be long-standing, widespread, and practiced in a uniform
and consistent way among nations. One example of customary international law is
a nation’s right to use the high seas for fishing, navigation, overflight, and
submarines.
Treaties represent another source of
customary law. Although treaties generally bind only those countries that ratify
them, customs may be deduced from the rules and statements contained in
treaties. These new customs may be considered binding even on those states that
did not sign and ratify the original treaty. Whether or not they are embodied in
a written treaty, customs become part of international law because of continued
acceptance by the great majority of nations.
Some customary international law has been
codified in recent years. For example, the Vienna Convention on the Law of
Treaties, which was approved in 1969 and took effect in 1980, codified the
customary law that treaties between sovereign states are binding on their
signatories and must be followed in good faith.
C | General Principles |
The phrase “general principles of law”
appeared in the statute of the Permanent Court of International Justice,
established in 1921, three years after the end of World War I (1914-1918). The
court was directed to decide disputes brought before it on the basis of existing
treaty law and customary international law. Some of the diplomats and lawyers
drafting the statute of the court feared, however, that disputes might
arise over new international issues for which there would be no settled custom
or applicable treaty. They decided, and the nations voting for the statute
agreed, to add a third source of law—“general principles of law
recognized by civilized nations”—to allow the court to draw upon widely
recognized legal principles in national law. In this way, the court would not
have to refuse to settle a dispute because of the absence of international law.
General principles that have been applied by the court and its successor, the
United Nations International Court of Justice, include the “clean hands”
doctrine (it is improper to accuse someone of misconduct that the accuser has
also engaged in), the principle that individuals should not be a judge in their
own dispute, and the principle of res judicata (a case that is decided
cannot be tried again).
D | International Courts and Organizations |
Judicial decisions rendered by
international courts are important elements in identifying and confirming
international legal rules. The most important international courts are the UN
International Court of Justice, which mainly handles legal disputes between
nations, and the International Criminal Court, which prosecutes individuals for
genocide, war crimes, and other serious crimes of international concern.
Resolutions and decisions of the UN and other international organizations now
also have a great impact on the views and practices of sovereign states,
sometimes leading to rapid formation of customary international law. States have
given a very few international organizations, such as the European Union and the
UN Security Council, the power to enact directly binding measures.
The first international organizations
emerged in the 19th century. Technological advances such as the telegraph and
the telephone, together with a rise in international trade, created a need for
permanent international institutions to regulate problems that exceeded national
boundaries. The earliest organizations of this type were specialized bodies such
as the International Telegraphic Union (1865) and the Universal Postal Union
(1874).
After World War I European countries
created the League of Nations, an organization with a general mandate to
maintain peace and prevent war. The League’s covenant was part of the Treaty of
Versailles signed in 1919 to officially end the war. Pursuant to provisions in
the covenant, the Permanent Court of International Justice was established in
1921 as the world’s first international court. Its role was to decide
international disputes that were voluntarily submitted to the court by the
nations involved, and to issue advisory opinions on disputes referred to it by
the League. Although the court helped to develop international law, its judges
were hampered by the lack of universal agreement on many aspects of
international law.
The onset of World War II in 1939 proved
the League of Nations ineffective in preventing hostilities. Equally
unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a
multilateral treaty renouncing the use of war that had been signed in 1928 and
ultimately ratified by more than 60 nations, including Germany and Japan. After
World War II ended in 1945 the United Nations replaced the League of Nations,
and the International Court of Justice succeeded the Permanent Court of
International Justice.
The United Nations Charter created
elaborate machinery for maintaining peace and security and for solving disputes
among nations. It also specifically directed the General Assembly to encourage
the progressive development and codification of international law. To carry out
this task, the General Assembly created two subsidiary organs: the International
Law Commission (1947) and the Commission on International Trade Law (1966). Over
the years the International Law Commission has prepared drafts of treaties
codifying and modernizing a number of important topics of international law,
including the law of the sea, diplomatic relations, consular relations, law of
treaties between nations, succession of states in respect to treaties, law of
treaties between nations and international organizations, immunity of states
from the jurisdiction of other states, and the law of international freshwaters.
The Commission on International Trade Law drafts texts on laws concerning
international commerce and economic development. Upon acceptance by the General
Assembly, drafts from the commissions usually are submitted to international
conferences called by the UN for adoption of the respective conventions.
In some instances, the UN has organized
conferences to discuss major international issues or to negotiate treaties
without prior proposal by the International Law Commission. The most important
example was the third UN Conference on the Law of the Sea, which terminated its
work in 1982. The conference adopted a convention (which came into force in
1994) governing all aspects of the peaceful use of the oceans, including
territorial boundaries, navigational rights, and economic jurisdiction (see
Freedom of the Seas). Another example is the 1992 UN Conference on
Environment and Development, held in Rio de Janeiro, Brazil, and informally
known as the Earth Summit. The conference produced two major treaties: the
Convention on Biological Diversity, which seeks to preserve the world’s
biological diversity and promote the sustainable use of its components; and the
Framework Convention on Climate Change, which seeks to limit industrial
emissions of gases leading to global warming. Sometimes the UN convenes major
conferences to assess progress and problems concerning a specific topic, without
adopting a new agreement. Such conferences have been held on human rights and on
the status of women worldwide.
A landmark in the development of
international law occurred in 1998 at a UN diplomatic conference in Rome, Italy,
when 120 countries adopted a treaty to establish the world’s first permanent
international criminal court. Officially established in 2002, the International
Criminal Court (ICC) operates independently of the United Nations and has the
power to initiate investigations and prosecutions of war criminals, including
those accused of genocide, crimes against humanity, and other serious crimes.
Unlike previous war crimes tribunals, such as those created in response to
atrocities in the former Yugoslavia and in Rwanda, the ICC’s jurisdiction is not
limited to specific conflicts.
IV | INTERNATIONAL LAW AND NATIONAL LAW |
Every nation is expected to obey
international law. Some nations make international law automatically part of the
law of their land. The U.S. Constitution designates ratified treaties, along
with the Constitution itself and federal statutes, the supreme law of the land
(Article VI) and empowers Congress “to define and punish … Offences against the
Law of Nations” (Article I, Section 8). Customary international law is
automatically incorporated into the U.S. legal system as federal common or
unwritten law.
In cases involving international law, U.S.
state and federal courts presume that U.S. law conforms to international law;
such an attitude has been urged consistently by the Supreme Court of the United
States. In some countries, such as the United Kingdom, treaties do not become
effective in national law until they are enacted by Parliament. In other
countries, a treaty or customary international law is given constitutional
status superior to national legislation. How a sovereign state adopts and
applies international law is generally left to its discretion, so long as it
conforms to the law in the end.
Whatever the constitution or legal system of
a nation, it cannot use its domestic law as an excuse to breach an international
agreement or violate an international rule. This was made clear during the war
crimes trials held in Nürnberg, Germany, following World War II. The Nürnberg
tribunals rejected the defense that certain acts, such as the killing of
prisoners of war, were permitted under the domestic laws of Nazi Germany. The
tribunals held that such laws were null and void because they contravened the
generally valid rules of warfare. It also held that the individuals responsible
for issuing and executing such laws were criminally responsible for grave
breaches of international law. Today, international human rights courts often
declare national laws incompatible with international rules and may award
compensation to those whose rights have been violated.
V | MATTERS OF INTERNATIONAL CONCERN |
The scope of international law is vast.
Nearly every matter of legal regulation within a nation has some international
counterpart. Over the last century, advances in communications technology,
growth in global trade and travel, and the advent of weapons of mass destruction
have led to an enormous expansion in the range of topics regulated by
international law. In addition to the classic matters of diplomacy, war and
peace, trade, and territorial boundaries, international law now covers matters
as diverse as environmental protection, human rights, nuclear testing, war
crimes, outer space, child custody, recognition of wills and testaments,
exchange of prisoners, and protection of archaeological sites and art treasures.
This section discusses several major areas of international law, including peace
and security, human rights, the environment, and the global commons.
A | Peace and Security |
Among the central aims of the UN are the
maintenance of peace and security and the suppression of acts of aggression. The
principles of the UN Charter prohibit the use of force to settle disputes and
bar intervention by a nation into the domestic affairs of another nation. The
charter also expressly includes among its objectives the maintenance of respect
for the obligations arising from treaties and other sources of international
law.
International law provides methods for the
settlement of disputes by means other than war. The UN Charter directs
disputants to engage in negotiation, conciliation, arbitration, or recourse to
the International Court of Justice. When conflicts do arise, the UN Security
Council may determine that there exists a threat to the peace or a breach of the
peace, or that an act of aggression has been committed. The Security Council may
vote to deploy UN peacekeeping forces—military personnel and civilians
volunteered by UN member governments—to help implement peace agreements, monitor
ceasefires, provide emergency relief, and perform other functions essential to
maintain peace. Over time the decisions of the Security Council have created a
body of law and policy on issues of peace and security, including the
development of international criminal law to hold individuals accountable for
the most serious illegal acts of violence.
B | Human Rights |
Since World War II the international
community has become increasingly concerned with the protection of human rights.
Although concern for human rights is expressed in the UN Charter, the
development of specific norms related to human rights began in 1948 with the
passage of two nonbinding declarations: the American Declaration of the Rights
and Duties of Man, approved by the Organization of American States, and the
Universal Declaration of Human Rights, approved by the UN. The Universal
Declaration of Human Rights described a variety of rights, including the rights
to life, liberty, and security of person; to freedom from slavery; to freedom of
conscience, religion, opinion, expression, association, and assembly; to freedom
from arbitrary arrest; to a fair and impartial trial; to privacy; and to
education. This document remains the cornerstone of international human rights
law and has been the basis of bills of rights in nearly 100 countries.
Other important international treaties
related to human rights include the Convention on the Prevention and Punishment
of the Crime of Genocide (1948); the International Convention on the Elimination
of All Forms of Racial Discrimination (1965); the UN Covenant on Civil and
Political Rights (1966) and its companion, the Covenant on Economic, Social and
Cultural Rights (1966); the Convention on the Elimination of All Forms of
Discrimination Against Women (1979); the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the Convention
on the Rights of the Child (1989). These treaties have been widely ratified; the
Convention on the Rights of the Child, for example, has been accepted by every
country in the world except the United States and Somalia. The treaties have
been supplemented by three regional human rights agreements: the European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950);
the American Convention on Human Rights (1969), and the African Charter on Human
and Peoples’ Rights. The regional agreements and many of the UN treaties allow
individuals to bring petitions to regional or global human rights organizations
for protection against acts by their governments that violate their rights.
C | The Environment |
In the late 1960s concern with the state of
the world’s environment emerged as an international issue. This occurred largely
in response to several disastrous spills by oil tankers that brought attention
to high pollution levels and the threats they pose to human health and
biological diversity.
The UN convened its first environmental
conference in 1972 in Stockholm, Sweden, from which emerged the Stockholm
Declaration on the Human Environment. The Declaration contains several legal
principles that have become the foundation for a vast network of international
agreements. The most important principle directs that each state has the
sovereign right to use its natural resources, but also has the corresponding
duty to ensure that its activities do not cause harm outside its boundaries.
Other principles link environmental protection with human rights and emphasize
the duty of each person to safeguard the environment. Many modern environmental
agreements regulate specific areas (the Baltic Sea, Antarctica), specific
species (whales, migratory birds), or specific hazards (nuclear energy, toxic
wastes). In each case, the legal obligation that emerges is to protect and
preserve components of the environment to foster sustainable development.
D | The Global Commons |
Large areas of the globe and beyond do not
and legally cannot belong to any nation: most of the oceans and their resources,
Antarctica, Earth’s atmosphere, outer space, and the Moon and other natural
objects in space. These areas are known collectively as the global commons.
The absence of political sovereignty for these areas means that
international regulation is required to avoid conflict over them and to protect
them from overuse, pollution, and other harm. International agreements for these
areas are generally accepted as providing the legal framework for all those who
conduct activities in them. See Aviation Law; Maritime Law; Freedom of
the Seas.
E | Other Issues |
International law has no fixed content.
New threats that cannot be addressed or resolved by a single nation constantly
call for new international responses. For example, recent international
agreements aim to combat terrorism, the distribution of illicit drugs across
national boundaries, and the spread of infectious disease. The development of
new technologies, such as the Internet, can also lead to the creation of new
international legal frameworks.
See also International Relations;
Treaty.
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