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Encyclopedia > Public international law

International law deals with the relationships between states, or between persons or entities in different states. It sub-divides into "public international law", and "private international law". When used without an adjective, "international law" generally refers to "public international law", and this article concentrates on that meaning.


Traditionally, international law had states as its sole subjects. With the proliferation over the last century of international organizations, they have been recognized as its subjects as well. More recent developments in international human rights law, international humanitarian law and international trade law (e.g. NAFTA Chapter 11 actions) have led to individuals and corporations being increasingly seen as subjects of international law as well, something which goes against the traditional legal orthodoxy. Since international law increasingly governs much more than merely relations between sovereign states, it may be better defined as law decided and enforced at the international, as opposed to national level. See world government for trends and movements leading in this direction.

Contents

Sources of international law

International law knows three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derrogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.


Interpretation of International Law

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute.


States with disputes relating to international law may decide to settle their dispute through the legal process with mutual consent (consent can be given in advance through treaty provisions). The dispute settlement may occur through arbitration, where the arbitrators are selected by the disputing parties, or in the International Court of Justice (ICJ). Decisions made through 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. The ICJ may also be called upon to give 'advisory opinions' by organs of the United Nations, which are not binding, but often carry force because of the strength of the legal arguments made within those opinions.


Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations.


States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law.


States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter.


Enforcement by international bodies

Violations of the UN Charter may be raised by the aggrieved state in the General Assembly or brought to the attention of the Security Council. Enforcement measures may include resolutions censoring the offending state, economic sanctions, or even military action if the violation involves the use of force or threatens international peace or security.


Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee.


History

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence.


The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe.


In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During Council of Constance (1414) - Pawel Wlodkowic - rector of Jagiellonian University (Cracow,Poland), theologist, lawyer and diplomat presented the theory that all, including pagan, nations have right to self-govern and to live in peace and possess their land.


In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation:

  1. Self-governing, autonomous states existed.
  2. Almost all of them were governed by monarchies.
    1. England and Polish-Lithuanian Commonwealth had a constitutional monarchy.
    2. Not all monarchs were hereditary: the Holy Roman Emperor and the ruler of Polish-Lithuanian Commonwealth were elected.
    3. Switzerland, the Netherlands, and many Italian city-states were republics.
  3. After the Thirty Years' War, there was relative stability in Europe for 130 years (until the 1789 French Revolution).
  4. Land, wealth, trading rights, and monopolizing the new lands were the topics of war.

Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes.


The Dominican professor Francisco de Vitoria (in Latin Franciscus de Victoria) of theology at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536. Charles V, Holy Roman Emperor, protested against the friar, but in 1542 new laws put the natives under protection of the Spanish crown. Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.)


The French monk Emeric Cruce (1590-1648) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas (1623), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War (1618 - 1648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes.


Hugo Grotius (or Huig de Groot) (1583-1645) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau, son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum (Latin for "Free seas"), in which he challenged the claims and attempts of England, Spain, and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law. It was published only two years after The New Cyneas.


Much of Grotius's content drew from the Bible and from classical history (just war theory of Augustine_of_Hippo). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria:

  1. It can be to repel an invasion.
  2. It can be to punish an insult to God.
  3. There has to be a just cause (one of the two mentioned above).
  4. It has to be declared by the proper authorities.
  5. It must possess moral intention.
  6. It must have a chance of success.
  7. It must abstain from brutal practices.
  8. Its end result must be proportional to the means used.

The statesmen of the time believed no nation could escape war, so they prepared for it.


King Henry IV's Chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established.


After World War I, the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a "League of Nations". However, due to political wrangling in the U.S. Congress, the United States did not join the League of Nations, which was one of the causes of its demise.


When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1, 1942, U.S. President Franklin D. Roosevelt issued the "Declaration by United Nations" on behalf of 26 nations who had pledged to fight against the Axis powers. Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations. On October 24,1945 , the United Nations officially came into existence, setting a basis for all international law to follow.


See also

Related topics: international community, world government, nationality, terrorism, environmental agreements, international auxiliary language, state, territorial integrity.


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