What is international law? international law is a living body of law and principle – it grows and develops in response to contemporary challenges informed by how states behave, by what states agree between themselves, by what the international court of Justice and other national courts say, and also by what respected commentators think about how the law should develop.
International law provides fundamental tools and mechanisms to address emerging global issues. The role of international law in conflict mitigation remains key – whether by building commercial links between states, fighting corruption, improving democratic governance, or providing methods for resolving international and ethnic disputes.
Ever since what is known as the Age of Exploration, large numbers of people have come together by crossing the seas, and marine-based commerce has connected the globe. The principle of freedom on the high seas came to be established, and the seas became the foundation for human prosperity. As history moved on, the wisdom and the practical experiences of a great many people involved with the sea, who were at times literally caught up in rough and raging waves, accumulated into common rules.
As there is no international parliament to pass law or the rules to make laws, we have to consider a variety of sources of law making and become comfortable with a degree of uncertainty about how the law can be described. In 1609, Grotius wrote one of the most important international legal doctrines regarding the seas and oceans — Mare Liberum, a Latin title that translates to “the freedom of the seas”. It is said to be ‘the first, and classic, exposition of the doctrine of the freedom of the seas’ which has been the essence and backbone of the modern law of the sea. Hugo Grotius (10 April 1583 – 28 August 1645), 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, which itself too is generally called the law of nations. This is what we now know as the international law of the seas.
Leadership by the most powerful country is important. Unfortunately, America’s domestic political gridlock often blocks this. For example, the US Senate has failed to ratify the UN Convention on the Law of the Sea, despite its being in America’s national interest – indeed, the US needs the convention to support its position on how to resolve competing territorial claims in the South China Sea.
Now, when we say “the rule of law at sea” — what exactly do we mean in concrete terms? If we take the fundamental spirit that we have infused into international law over the ages and reformulate it into three principles, we find the rule of law at sea is actually a matter of common sense.
Three principles: The rule of law at sea:
- The first principle is that states shall make and clarify their claims based on international law.
- The second is that states shall not use force or coercion in trying to drive their claims.
- The third principle is that states shall seek to settle disputes by peaceful means.
The sovereignty over the territorial sea is exercised subject to UN Convention law of the sea and to other rules of international law. Affirming that matters not regulated by this convention continue to be governed by the rules and principles of general international law.
China has been met by growing assertiveness from regional claimants like Japan, Vietnam, and the Philippines. The increasingly frequent standoffs span from the Diaoyu/Senkaku Islands, on China’s eastern flank, to the long stretch of archipelagos in the South China Sea that comprise hundreds of islets. The U.S. pivot to Asia, involving renewed diplomatic activity and military redeployment, could signal Washington’s heightened role in the disputes, which, if not managed wisely, could turn part of Asia’s maritime regions from thriving trade channels into arenas of conflict.
So to reiterate this, it means making claims that are faithful in light of international law, not resorting to force or coercion, and resolving all disputes through peaceful means.
Bringing territorial disputes to an international legal body presents another means of conflict mitigation. The International Court of Justice and the International Tribunal for the Law of the Sea are two forums where claimants can file submissions for settlement. In July 2013, a UN tribunal was convened in The Hague to discuss an arbitration case filed by the Philippine government contesting the legality of China’s territorial claims in the South China Sea.
An outside organization or mediator could also to be called upon to resolve the disagreement, although the prospect for success in these cases is slim given China’s likely opposition to such options.
In other cases, at the end of a war each State retained as its territory the area it had actually possessed at the end of hostilities.
During the 20th century many new States were created through decolonisation. In addition to the creation of a new State with the consent of the former sovereign government, new States can be created by secession, where part of a State secedes and the former sovereign State continues in existence, or dissolution, where the former sovereign State ceases to exist and its parts form new States. The dissolution of the former USSR and Yugoslavia at the end of the 20th century are examples of the latter.
It is often said that the last several years have signalled a transition to a new stage in the development of Western Balkans that will lead the region into the European Union. Some countries are closer to that goal, others are further away, but ultimately they are all on the same road.
In some instances, new States can be created by agreement, such as the division of Czechoslovakia into the Czech and Slovak Republics at the end of 1992, and the merger of North and South Yemen to form the Republic of Yemen in 1990. The principle of uti possidetis, which derives from Roman law, was first applied in international law to determine territorial boundaries resulting from armed conflict. “Roman law” also denotes the legal system applied in most of Western Europe until the end of the 18th century. In Germany, Roman law practice remained in place longer under the Holy Roman Empire (963–1806). A state is a perfect body of free men, united together in order to enjoy common rights and advantages.
The Arab states that emerged after World War I have always struggled with their heterogeneous populations, uncertain national identities, and deep internal fissures. They have existed for almost a century, and vested interests have developed around the preservation of their national borders and institutions. But ethnic, sectarian, and tribal divisions still linger, as conflicts in Iraq, Lebanon, Libya, Syria, and Yemen so clearly demonstrate.
Recognition of a State as an international legal person by another State occurs formally through a letter of recognition, legislation, or a treaty, or informally through some form of diplomatic interaction. There are two theories on the effect of recognition:
> constitutive – where the act of recognition confers international personality;
> declaratory – if a State satisfies the factual criteria, then it exists as a legal person and recognition is simply a political act.
Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. Recent work demonstrates that decisions made in one jurisdiction are tied to decisions taken in others, and that actual jurisdictional boundaries are no longer confined to the nation state.
This shift, which has been called “judicialization,” has become more or less global in its reach, as evidenced by the fact that it is as marked in Europe, and especially recently in Eastern Europe, as it is in the United States. Newly energized French judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders.
One aspect of judicialization can be observed in the widespread adoption of institutions and practices of constitutional adjudication, even in places with legal institutions and traditions that had long been inhospitable to this process. True, the modes of constitutional adjudication adopted in Europe and elsewhere do not precisely follow the U.S. model. Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been—even in its most activist periods.
International law today touches on nearly every aspect of our lives, from the price of practically everything we purchase, to the health of the environment that surrounds us, to our ability to communicate seamlessly worldwide The foundations of the protection of the environment in international law are fundamental principles of customary international law, treaty law, judicial decisions, and ‘soft law’ or non-binding sources such as resolutions, recommendations and declarations of international organisations and conferences.
These encounters serve as daily reminders that, as Louis Henkin famously put it, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” – historic gathering of the international law community 7-12 April 2014.
Yet at the same time, there are regular reminders that not all nations, groups, or individuals observe all principles of international law or all of their obligations all of the time. International law violations such as human rights abuses, tradelaw breaches, and law of armed conflict violations remain all too common.
As transnational issues pervade the U.S. Supreme Court docket, international law plays an increasingly important role, even in cases once considered purely domestic. On April 3, the Foreign Policy Program at Brookings and The Hague Institute for Global Justice, with the Foreign Ministry of the Kingdom of the Netherlands, hosted Justice Stephen Breyer for a discussion of the role of the U.S. Supreme Court in the world.
This event launched the inaugural lecture in the Annual Justice Stephen Breyer International Law Lecture Series, which addresses critical issues of international law and the courts that apply it.
There is debate about both the method and substance of international law amongst learned academics and jurists. It is generally accepted that Article 38 of the Statute of the International Court of Justice is a complete statement of the sources of international law. Article 38 describes the following four sources:
- international conventions and treaties that establish rules that States expressly recognise;
- international custom as evidence of general practice(s) accepted by States as law;
- general principles of law; and
- judicial decisions and the teachings of highly qualified publicists of various
Judges in the United States and elsewhere can benefit greatly from studying opinions and rulings in other countries to better inform decisions at home and engage in an exchange of legal concepts in areas of shared values.
Courts around the world have important contributions to make towards bridging different political and legal cultures and doing the fundamental legal and institutional work required to shape law, especially as state, federal and international law become increasingly interconnected.
The United States regularly enters into international legal agreements with other States or international organizations that are legally binding as a matter of international law. Under U.S. law, legally binding international agreements may take the form of treaties or executive agreements. Under U.S. law, a treaty is an agreement negotiated and signed9 by the executive that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President. Treaties generally require parties to exchange or deposit instruments of ratification in order for them to enter into force.
The great majority of international agreements that the United States enters into are not treaties but executive agreements—agreements entered into by the executive branch that are not submitted to the Senate for its advice and consent. Congress generally requires notification upon the entry of such an agreement. Starting in the World War II era, reliance on executive agreements has grown significantly.
There are three types of prima facie legal executive agreements:
(1) congressional-executive agreements, in which Congress has previously or retroactively authorized an international agreement entered into by the executive;
(2) executive agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified treaty; and
(3) sole executive agreements, in which an agreement is made pursuant to the President’s constitutional authority without further congressional authorization.
In the United States, there is a long history of courts’ determining constitutional limits for legislatures. To be sure, those limits have fluctuated over time, and their contents remain deeply in dispute.
The judicialization of politics has partly the same explanation as the judicialization of lawmaking itself. Perhaps as important as the invention of constitutional courts is the creation of supernational judicial institutions in Luxembourg and Strasbourg, namely the European Court of Justice and the European Court of Human Rights.
These institutions have increasingly limited the capacities of national political institutions to make and implement domestic and international policy. Indeed, the incorporation of human rights jurisprudence in European states has given ordinary judges much more power to challenge legislation.
Even British judges can now review and challenge acts of Parliament, a circumstance that was inconceivable just a few years ago. In effect, there are now three judiciaries in Europe that can review legislation: ordinary judges, constitutional justices, and the justices serving on the European Courts.
The European Court of Justice (“ECJ”) has been just as effective in establishing jurisdiction over national laws or ordinances that affect the movement of goods, finance, or people throughout the European Union (“EU”).
Not surprisingly from this perspective, much of the development of the European Common market, and indeed of European social and economic integration, has been guided by the Commission and the Court of Justice rather than by the Parliament or the national governments. The European Parliament has been given wider powers, especially in the areas of justice and security, which are not simple matters because that is where the Member States put up the biggest obstacles.
Stephen Breyer, Associate Justice, Supreme Court: speaking at the event, which addresses critical issues of international law, said that “The Constitution gives Congress and the president the duty and power to worry about our security. It doesn’t give that duty to judges”.
The International Court of Justice (ICJ), which is the principal judicial organ of the United Nations, is authorised to consider these sources when deciding disputes. However, a decision of the ICJ has no binding force except between parties and in respect of that particular case: Article 59, Statute of the International Court of Justice.
The International Court of Justice (ICJ) is the main court of the UN and its decisions identify and articulate international law rules based on treaty, custom, general principles of law, judicial decisions of international and national courts and tribunals, and the writings of jurists.
The ICJ was established with the UN in 1945. It succeeded the Permanent Court of International Justice and is located in The Hague. It has 15 permanent members, elected for a nine-year term. Elections are held every three years, and one-third of the judges retire each time. If the Court does not include a judge of the nationality of a State which is a party in a case, that State can nominate a judge ad hoc to sit on the case. Decisions are by majority vote, and there is no appeal.
International law is often implemented and enforced through national legal systems as well as through a variety of specialised international courts, tribunals and treaty bodies. the united nations charter is principally concerned with the preservation of world peace, including through various methods for resolving disputes peacefully (see article 33 of the un charter). these methods range from informal, nonbinding, diplomatic methods through to formal and binding judicial settlement.
The Charter also provides for special measures of coercive enforcement in response to the use of military force, including unilateral or collective self-defence (article 51 of the Charter) and collective security measures (such as sanctions, peacekeeping, and military force) under Chapter VII of the Charter.
Treaties, or international conventions, can be bilateral (between two States) or multilateral (between many States). Although often used interchangeably, the term ‘convention’ is usually reserved for multilateral agreements, such as the hague, geneva and Vienna conventions.
treaties can also be called agreements, protocols or instrumen
Treaties are binding – the principle of pacta sunt servanda (from Latin, meaning ‘agreements are to be kept’ or ‘treaties are binding’) asserts that:
> when treaties are properly concluded, they are binding
on the parties, and must be performed by them in good faith;
> the obligations created by a treaty are binding in respect of a State’s entire territory;
> a State cannot use inconsistency with domestic law as an excuse
In addition to treaties, there are agreements between States that are not intended to be governed by international law. These agreements, known as ‘arrangements of less than treaty status’, are generally expressions of intention or political commitment.
The Vienna Convention on the Law of Treaties came into force on 27 January 1980. Although it is not a complete code of the law of treaties, it declares existing law and also provides evidence of emerging norms of international law. It deals with the conclusion of treaties, the termination of treaty relationships, and the effect of breach of treaty obligations. It does not deal with treaties between States and non-State organisations; questions of State succession; or the effect of war on treaty obligations and relationships.
All multilateral treaties and ‚major bilateral treaties of particular significance‛ are required to undergo the Parliamentary treaty examination process. This requires presentation of a National Interest Analysis (‚NIA‛) in the House of Representatives. Where these treaties have regulatory implications. The basic principle that would be applied in terms of decisions about RIA is that those decisions should be taken based on the significance of the Cabinet decisions being sought.
Track I treaty negotiations: Cabinet papers seeking decisions on treaty negotiations, regardless of whether they are for bilateral or multilateral treaties. The second category may require further explanation. It covers essentially all Cabinet papers for treaty negotiations with direct regulatory implications (i.e. requiring changes to legislation or regulations).
For some treaty negotiations it may be clear from the outset that it does not belong in Track I. Other treaty negotiations that start on Track I may require Cabinet decisions updating the negotiating mandate as negotiations progress.
Bilateral treaties that are not ‚major bilateral treaties of particular significance‛ do not need to undergo the Parliamentary treaty examination process.
The process for concluding a treaty generally includes the following steps:
Adoption – when the negotiators of the treaty finalise text, the text is adopted.
Signature – signature indicates an intention to become a party to a treaty, and does not usually establish consent to be bound by the terms of the treaty, unless the treaty provides for the signature having that effect.
Ratification – this is the confirmation of the signature of the treaty, and is the formal act by which a State indicates that it consents to be bound by the treaty. It is usually carried out by the sovereign or head of State. Before ratifying a treaty, a State will usually have carried out any necessary steps to enable it to comply, such as legislation or other forms of domestic approval.
A State which has signed a treaty is obliged not to act in such a way that would defeat the object and purpose of the treaty. A State is not, however, bound by a treaty until ratification, and is not bound to ratify a treaty it has signed.
Accession – a State which has not signed a treaty can formally indicate its intention to be bound by the treaty before or after the treaty has come into force.
Entry into force – the terms of a treaty will usually specify how and when it comes into force. Many multilateral treaties require that a specified number of States consent to be bound before the treaty can enter into force. An example is the 1982 UN Law of the Sea Convention, which required 60 ratifications before it came into force in 1994.
Full Powers are needed only in the case of signature of a treaty (in the generic sense), including signature and exchange of letters/notes constituting an agreement. In some cases a foreign country will waive the requirement for Full Powers, but as waiver is not to be taken for granted, care should always be exercised to check whether the country in question will ask for an Instrument of Full Powers to be provided.
– difference between international law and domestic law –Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State.
- International law differs from domestic law in two central respects: There is no supreme law-making body in international law. Treaties are negotiated between States on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the United Nations is not a law-making body, and so its resolutions are not legally binding.
- International law has no international police force to oversee obedience to the international legal standards to which States agree or that develop as international standards of behaviour.
However, UN Security Council resolutions to take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States: see UN Charter, Chapter 7. In some instances, the Security Council can authorise the use of coercive economic sanctions or even armed force.
A long-held dream of internationalists, of a permanent international body to hold perpetrators of serious crimes accountable, has now been realised. The International Criminal Court (ICC) is an independent, permanent court based at The Hague in the Netherlands. The ICC is not intended to take over jurisdiction exercised by national courts: The ICC is intended to exercise its jurisdiction only when the state is unwilling or genuinely unable to prosecute. States continue to have the primary duty to prosecute suspected war criminals before theirs own courts.
The United Nations has been considering the establishment of a permanent international criminal court since its creation. After years of negotiations, a Diplomatic Conference was held from 15 June to 17 July 1998, 120 States adopted the Rome Statute of the International Criminal Court (Rome Statute) in Rome which finalised and adopted the Statute for the International Criminal Court (ICC). The Statute was finally adopted by a vote where 120 were in favour, 7 against and 21 abstained.
The establishment of an ICC represents a major progress for better implementation of international humanitarian law and a clear step forward in the battle against impunity. Hence, for the Court to be truly effective, a very large number of States must ratify the Statute.
On 1 July 2002, the Rome Statute came into force upon its ratification by 60 States. This is significant because it signals an international consensus on definitions of genocide, crimes against humanity and war crimes.
Whereas the old international legal order emphasized “state security,” defined by borders, statehood, and territory, the emerging focus is now on “human security”: the protection of persons and peoples. Some of the result is what a law professor at New York Law School, calls “humanity’s law,” a new discourse on violence and world politics that brings together and crystallizes a multitude of small but important shifts in international human rights law, the law of war, and international criminal justice.
Why do States obey international law? – Even though international law does not have the coercive enforcement processes available to domestic law, it is in the interests of most States to ensure stability and predictability in their relations with other States. By complying with their obligations, they help to ensure that other States comply with theirs.
Before 1945, international law generally allowed States to resort to military force to settle their disputes, which often led to the escalation of military violence and ultimately to world wars.
Since the adoption of the UN Charter, all member States are required to refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the UN: Article 2(4) of the UN Charter.
Last month Russia, a European country, annexed a part of the territory of its neighbour on trumped up pretexts and through an illegal referendum held at the end of the barrel of a gun. By this act Russia violated the fundamental principles of sovereignty, territorial integrity and the right of every democratic nation to choose its own future. These principles have been built up over 70 years to avoid a repeat of the terrible conflicts of the 20th century that inflicted such grave suffering on Europe, particularly on Russia.
On 9 April, the Government of Ukraine submitted a request to the International Criminal Court (ICC) to investigate the events that occurred on Maidan from 21 November 2013 to 22 February 2014. The Registrar of the ICC received a declaration lodged by Ukraine accepting the ICC jurisdiction with respect to alleged crimes committed on its territory during the above mentioned period. The declaration was lodged under article 12(3) of the Rome Statute, which enables a non-party to the Statute to accept the exercise of jurisdiction of the Court. The Prosecutor of the ICC has decided to open a preliminary examination into the situation in Ukraine in order to establish whether the Rome Statute criteria for opening an investigation are met.
On 15 April, the Minister of Justice officially stated that there was unanimous support within the Government for the ratification of the Rome Statute, which Ukraine signed in 2000 but not yet ratified. On 16 April, the acting President of Ukraine signed the Law “On amendments to the Criminal Code of Ukraine”, which entered into force on 19 April. It includes provisions that increase penalties related to the encroachment and inviolability of the territorial integrity of Ukraine, as well as for high treason and the undermining of national security (Sabotage and espionage).
In all these areas the Russian government is now at risk of undermining its own influence, and steadily disconnecting Russia from the international community. The Russian people stand to lose most of all, if their government continues on this path of the destabilisation of Ukraine.
The developments in and around Ukraine are seen to constitute a threat to neighboring Allied countries and having direct and serious implications for the security and stability of the Euro-Atlantic area. Military action against Ukraine by forces of the Russian Federation is a breach of international law and contravenes the principles of the NATO-Russia Council and the Partnership for Peace. Russia must respect its obligations under the United Nations Charter and the spirit and principles of the OSCE, on which peace and stability in Europe rest.
Under UN Charter obligations: Chapter VI – Pacific Settlement of Disputes Charter obligations.
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The European Union remains ready to support facilitating dialogue between Ukraine and Russia.
As these events show, we are probably heading for a period of greater instability and sometimes greater dangers in world affairs, said The Foreign Secretary William Hague speaking about the future of British foreign policy at the Lord Mayor’s Banquet.
These words represent combination of internal and international dynamics in world affairs
As the crisis in Ukraine shows that security in the Euro-Atlantic area cannot be taken for granted, the secretary-general discussed (On March 19, the Center on the United States and Europe hosted NATO Secretary-General Anders Fogh Rasmussen for a Statesman’s Forum addressing the importance of the trans-Atlantic alliance and the future of NATO given new common security challenges. NATO’s essential role in an unpredictable world. And how the North Atlantic Treaty Organization (NATO) is evolving to address new common security challenges.
All nations, including Russia, depend on a rules-based international system. For those rules to remain credible there must be costs attached to breaking international agreements. Both U.S and European nations adopted unprecedented sanctions on Russia. These are not designed to punish the Russian people. They are a message and a warning to Russia’s leaders for breaking international law and ageements.
All States must refrain from the threat or use of force against the territorial integrity or political independence of any State. Unless there is express support from the Charter of the United Nations, no consideration may be invoked to serve to warrant resort to the threat or use of force in contravention of this principle.
One of the very fundamental principles that everyone decided upon at the end of the Cold War, at the end of the Soviet Union, at the end of Yugoslavia, was: don’t change the borders,”Swedish Foreign minister Carl Bildt told CNBC on Wednesday, 12 March 2014.
Mr Bildt was a mediator during the Balkans conflict. We should always learn the lessons of history.