International law

International law

Overview
Public international law concerns the structure and conduct of sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...

s; analogous entities, such as the Holy See
Legal status of the Holy See
The legal status of the Holy See, both in state practice and according to the writing of modern legal scholars, is that of a full subject of public international law, with rights and duties analogous to those of States....

; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporation
Multinational corporation
A multi national corporation or enterprise , is a corporation or an enterprise that manages production or delivers services in more than one country. It can also be referred to as an international corporation...

s and individual
Individual
An individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...

s, 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 to the increase in global trade
International trade
International trade is the exchange of capital, goods, and services across international borders or territories. In most countries, such trade represents a significant share of gross domestic product...

, environmental deterioration on a worldwide scale, awareness of human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 violations, rapid and vast increases in international transportation and a boom in global communications.

The field of study combines two main branches: the law of nations (jus gentium
Jus gentium
Ius gentium, Latin for "law of nations", was originally the part of Roman law that the Roman Empire applied to its dealings with foreigners, especially provincial subjects...

) and international agreements and conventions (jus inter gentes
Jus inter gentes
Ius inter gentes, or ius inter gentes, is the body of treaties, U.N. conventions, and other international agreements. Originally a Roman law concept, it later became a major part of public international law. The other major part is jus gentium, the Law of Nations referred to in the United States...

), which have different theoretical foundations and should not be confused.

Public international law should not be confused with "private international law", which is concerned with the resolution of conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

.
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Encyclopedia
Public international law concerns the structure and conduct of sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...

s; analogous entities, such as the Holy See
Legal status of the Holy See
The legal status of the Holy See, both in state practice and according to the writing of modern legal scholars, is that of a full subject of public international law, with rights and duties analogous to those of States....

; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporation
Multinational corporation
A multi national corporation or enterprise , is a corporation or an enterprise that manages production or delivers services in more than one country. It can also be referred to as an international corporation...

s and individual
Individual
An individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...

s, 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 to the increase in global trade
International trade
International trade is the exchange of capital, goods, and services across international borders or territories. In most countries, such trade represents a significant share of gross domestic product...

, environmental deterioration on a worldwide scale, awareness of human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 violations, rapid and vast increases in international transportation and a boom in global communications.

The field of study combines two main branches: the law of nations (jus gentium
Jus gentium
Ius gentium, Latin for "law of nations", was originally the part of Roman law that the Roman Empire applied to its dealings with foreigners, especially provincial subjects...

) and international agreements and conventions (jus inter gentes
Jus inter gentes
Ius inter gentes, or ius inter gentes, is the body of treaties, U.N. conventions, and other international agreements. Originally a Roman law concept, it later became a major part of public international law. The other major part is jus gentium, the Law of Nations referred to in the United States...

), which have different theoretical foundations and should not be confused.

Public international law should not be confused with "private international law", which is concerned with the resolution of conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

. In its most general sense, international law "consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations inter se
Inter se
Inter se is a Legal Latin phrase meaning "between or amongst themselves". For example;In Australian constitutional law, it refers to matters concerning a dispute between the Commonwealth and one or more of the States concerning the extents of their respective powers....

, as well as with some of their relations with persons, whether natural or juridical."

Sources and scope



Public international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules 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
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

. 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, as subsidiary means for the determination of rules of law). Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....

 (ILC), under the aegis of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

. 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 norm
Peremptory norm
A peremptory norm 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.There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but...

s (jus cogens) as to include all states with no permissible derogations.

Public international law establishes the framework and the criteria for identifying states
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...

 as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 over territory, international law deals with the acquisition of territory, state immunity
State immunity
The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts...

 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
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...

, the rights of refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...

s, international crime
International crime
International crime may refer to:*Crime against international law*Crime against humanity*Crime against peace*War crime*International criminal lawor it may refer to transnational crimes...

s, nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....

 problems, and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 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
Use of force
The term use of force describes a right of an individual or authority to settle conflicts or prevent certain actions by applying measures to either: a) dissuade another party from a particular course of action, or b) physically intervene to stop them...

 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
International waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...

 and outer space
Outer space
Outer space is the void that exists between celestial bodies, including the Earth. It is not completely empty, but consists of a hard vacuum containing a low density of particles: predominantly a plasma of hydrogen and helium, as well as electromagnetic radiation, magnetic fields, and neutrinos....

, global communications, and world trade
World Trade
World Trade can refer to:*International trade*International finance*World Trade Organization*World Trade, a progressive rock band*World Trade Center...

.

Whilst municipal law
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...

 is hierarchical or vertical in its structure (meaning that a legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 enacts binding legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...

), international law is horizontal in nature. This means that all states are sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

 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
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...

".

Breaches of international law raise difficult questions for lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

s. 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
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.

Traditionally, sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...

s 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 human rights law
International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels...

, international humanitarian law
International humanitarian law
International humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...

, and international trade law
International trade law
International trade law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors, which is not right. This branch of law is now an independent field of study as most governments has become part of...

 (e.g., North American Free Trade Agreement
North American Free Trade Agreement
The North American Free Trade Agreement or NAFTA is an agreement signed by the governments of Canada, Mexico, and the United States, creating a trilateral trade bloc in North America. The agreement came into force on January 1, 1994. It superseded the Canada – United States Free Trade Agreement...

 (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.

History



Beginning with the Peace of Westphalia
Peace of Westphalia
The Peace of Westphalia was a series of peace treaties signed between May and October of 1648 in Osnabrück and Münster. These treaties ended the Thirty Years' War in the Holy Roman Empire, and the Eighty Years' War between Spain and the Dutch Republic, with Spain formally recognizing the...

 in 1648, the 17th, 18th and 19th centuries saw the growth of the concept of the sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...

 "nation-state
Nation-state
The nation state is a state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. The state is a political and geopolitical entity; the nation is a cultural and/or ethnic entity...

", which consisted of a nation controlled by a centralized system of government. The concept of nationalism
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...

 became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, and not binding except as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly destructive, most markedly towards civilians, and civilized peoples decried their horrors, leading to calls for regulation of the acts of states, especially in times of war.

Perhaps the first instrument of modern public international law was the Lieber Code
Lieber Code
The Lieber Code of April 24, 1863, also known as Instructions for the Government of Armies of the United States in the Field, General Order № 100, or Lieber Instructions, was an instruction signed by President Abraham Lincoln to the Union Forces of the United States during the American Civil War...

, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilized nations, the precursor of public international law. Part of the Code follows:

"Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. (...But...) Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult."


This first statement of the previously uncodified rules and articles of war led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War.

In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not limited to, the Permanent Court of Arbitration
Permanent Court of Arbitration
The Permanent Court of Arbitration , is an international organization based in The Hague in the Netherlands.-History:The court was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution.The creation of...

 in 1899; the Hague
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...

 and Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...

, the first of which was passed in 1907; the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

 in 1921; the Genocide Convention; and the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...

, in the late 1990s. Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute.

Conflicts between public international law and national sovereignty



The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Numerous people now view the nation-state as the primary unit of international affairs, and believe that only states may choose to voluntarily enter into commitments under international law, and that they have the right to follow their own counsel when it comes to interpretation of their commitments. Certain scholars and political leaders 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, argue that international law has evolved to a point where it exists separately from the mere consent of states, and discern a legislative and judicial process to international law that parallels such processes within domestic law. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations.

A number of states place emphasis on the principal of territorial sovereignty, thus seeing states as having free rein over their internal affairs. Other states oppose this view. One group of opponents of this point of view, including many Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...

an nations, maintain that all civilized nations have certain norms of conduct expected of them, including the prohibition of genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...

, slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...

 and the slave trade, wars of aggression
War of aggression
A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...

, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...

, and piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...

, and that violation of these universal norms represents a crime, not only against the individual victims, but against humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual responsible for violation of international law, he "is become, like the pirate
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...

 and the slave trader before him, hostis humani generis
Hostis humani generis
Hostis humani generis is a legal term of art that originates from admiralty law. Before the adoption of public international law, maritime pirates and slavers were held to be beyond legal protection, and could be dealt with as seen fit by any nation, even if that nation had not been directly...

, an enemy of all mankind", and thus subject to prosecution in a fair trial before any fundamentally just tribunal, through the exercise of universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...

.

Though the European democracies tend to support broad, universalistic interpretations of international law, many other democracies have differing views on international law. Several democracies, including India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...

, Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...

 and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, take a flexible, eclectic approach, recognizing aspects of public international law such as territorial rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being subjects of public international law at all. Democracies in the developing world, due to their past colonial histories, often insist on non-interference in their internal affairs, particularly regarding human rights standards or their peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter.

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 interpretation is within the domain of the protagonists, but may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end.
Insofar as treaties are concerned, the Vienna Convention on the Law of Treaties
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...

 writes on the topic of interpretation that:
"A treaty shall be interpreted in good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...

 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
Ronald Coase
Ronald Harry Coase is a British-born, American-based economist and the Clifton R. Musser Professor Emeritus of Economics at the University of Chicago Law School. After studying with the University of London External Programme in 1927–29, Coase entered the London School of Economics, where he took...

 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
Unrestricted submarine warfare
Unrestricted submarine warfare is a type of naval warfare in which submarines sink merchantmen without warning, as opposed to attacks per prize rules...

 was considered a violation of international law and ostensibly the casus belli
Casus belli
is a Latin expression meaning the justification for acts of war. means "incident", "rupture" or indeed "case", while means bellic...

 for the United States' declaration of war against Germany. By World War II, however, the practice was so widespread that during the Nuremberg trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....

, the charges against German Admiral Karl Dönitz
Karl Dönitz
Karl Dönitz was a German naval commander during World War II. He started his career in the German Navy during World War I. In 1918, while he was in command of , the submarine was sunk by British forces and Dönitz was taken prisoner...

 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 comes 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
Diplomacy
Diplomacy is the art and practice of conducting negotiations between representatives of groups or states...

 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.

It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace.

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
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...

 for debate. The General Assembly cannot make binding resolutions, only 'recommendations', but through its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it has the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace".

The Uniting for Peace resolution was initiated by the United States in 1950, shortly after the outbreak of the Korean War
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...

, as a means of circumventing possible future Soviet vetoes in the Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...

. The legal significance of the resolution is unclear, given that the General Assembly cannot issue binding resolutions. However, it was never argued by the "Joint Seven-Powers" that put forward the draft resolution, during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council. The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made law by the Assembly's adoption of resolution 377 A.

Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "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 adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which 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
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

  (ICJ) in its advisory opinion on Namibia
Namibia
Namibia, officially the Republic of Namibia , is a country in southern Africa whose western border is the Atlantic Ocean. It shares land borders with Angola and Zambia to the north, Botswana to the east and South Africa to the south and east. It gained independence from South Africa on 21 March...

. 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
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...

, located in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...

, Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

. 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
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...

 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 June 2009, there are 15 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
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

 have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...

.

International legal theory



International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

, the Eclectic and the Legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

 schools of thought.

Natural law


The natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 approach argues that international norms should be based on axiomatic
Axiomatic
* In mathematics, an "axiomatic" theory is one based on axioms* Axiomatic , a collection of short stories by Greg Egan* Axiomatic , a 2005 album by Australian band Taxiride...

 truths. 16th century natural law writer, Francisco de Vitoria
Francisco de Vitoria
Francisco de Vitoria, OP was a Spanish Renaissance Roman Catholic philosopher, theologian and jurist, founder of the tradition in philosophy known as the School of Salamanca, noted especially for his contributions to the theory of just war and international law...

, a professor of theology
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...

 at the University of Salamanca
Salamanca
Salamanca is a city in western Spain, in the community of Castile and León. Because it is known for its beautiful buildings and urban environment, the Old City was declared a UNESCO World Heritage Site in 1988. It is the most important university city in Spain and is known for its contributions to...

, examined the questions of the just war
Just War
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...

, the Spanish authority in the Americas
Americas
The Americas, or America , are lands in the Western hemisphere, also known as the New World. In English, the plural form the Americas is often used to refer to the landmasses of North America and South America with their associated islands and regions, while the singular form America is primarily...

, and the rights of the Native American peoples.

Eclectic or Grotian school


In 1625 Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...

 argued that nations as well as persons ought to be governed by universal principle based on morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

 and divine justice
Divine retribution
Divine retribution is supernatural punishment of a person, a group of people, or all humanity by a deity in response to some human action.Many cultures have a story about how a deity exacted punishment on previous inhabitants of their land, causing their doom.An example of divine retribution is the...

 while the relations among polities ought to be governed by the law of peoples, the jus gentium
Jus gentium
Ius gentium, Latin for "law of nations", was originally the part of Roman law that the Roman Empire applied to its dealings with foreigners, especially provincial subjects...

, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda
Pacta sunt servanda
Pacta sunt servanda , is a brocard, a basic principle of civil law and of international law.In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that nonfulfilment of respective obligations is a breach of the...

, that is, on the basis of the observance of commitments. On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic
Eclecticism
Eclecticism is a conceptual approach that does not hold rigidly to a single paradigm or set of assumptions, but instead draws upon multiple theories, styles, or ideas to gain complementary insights into a subject, or applies different theories in particular cases.It can sometimes seem inelegant or...

 school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia
Peace of Westphalia
The Peace of Westphalia was a series of peace treaties signed between May and October of 1648 in Osnabrück and Münster. These treaties ended the Thirty Years' War in the Holy Roman Empire, and the Eighty Years' War between Spain and the Dutch Republic, with Spain formally recognizing the...

.

Legal positivism


The early positivist
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

 school emphasized the importance of custom and treaties as sources of international law. 16th century Alberico Gentili
Alberico Gentili
Alberico Gentili was an Italian jurist. He left Italy due to his Protestant faith, travelled in Central Europe, and emigrated to England. In 1580 he became regius professor of civil law at the University of Oxford...

 used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality
Rationality
In philosophy, rationality is the exercise of reason. It is the manner in which people derive conclusions when considering things deliberately. It also refers to the conformity of one's beliefs with one's reasons for belief, or with one's actions with one's reasons for action...

 over morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

 and ethics. The 1815 Congress of Vienna
Congress of Vienna
The Congress of Vienna was a conference of ambassadors of European states chaired by Klemens Wenzel von Metternich, and held in Vienna from September, 1814 to June, 1815. The objective of the Congress was to settle the many issues arising from the French Revolutionary Wars, the Napoleonic Wars,...

 marked the formal recognition of the political and international legal system based on the conditions of Europe.

Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective
Objectivity (philosophy)
Objectivity is a central philosophical concept which has been variously defined by sources. A proposition is generally considered to be objectively true when its truth conditions are met and are "mind-independent"—that is, not met by the judgment of a conscious entity or subject.- Objectivism...

" reality that needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 validity
Validity
In logic, argument is valid if and only if its conclusion is entailed by its premises, a formula is valid if and only if it is true under every interpretation, and an argument form is valid if and only if every argument of that logical form is valid....

and it deems irrelevant all extralegal arguments.

External links