1.5 International law

International law governs relationships between nations, shaping global order through treaties, customs, and principles. It emerged from ancient civilizations, evolving into a complex system that addresses issues like sovereignty, human rights, and international crime.

International law operates through various sources, including treaties, customary practices, and general legal principles. Its enforcement relies on diplomatic measures, international courts, and sometimes the use of force, balancing state sovereignty with global cooperation and accountability.

Origins of international law

• International law emerged from the interactions and agreements between sovereign states, with roots in ancient civilizations and evolving over centuries
• Early forms of international law included treaties between city-states in ancient Greece and Rome, as well as customs and practices observed by maritime nations
• The Peace of Westphalia in 1648 marked a significant milestone in the development of modern international law, establishing the concept of state sovereignty and the principle of non-interference in the internal affairs of other states

Treaties as international law

Bilateral vs multilateral treaties

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• Bilateral treaties are agreements between two states, while multilateral treaties involve three or more states
• Bilateral treaties often address specific issues or relationships between the two parties, such as trade, extradition, or border demarcation
• Multilateral treaties cover a wider range of topics and are used to establish international norms, standards, or institutions (United Nations Charter, Geneva Conventions)

Process of treaty ratification

• Treaty ratification is the process by which a state formally consents to be bound by the terms of a treaty
• The process typically involves the state's executive branch signing the treaty, followed by the legislative branch approving or ratifying it
• Once ratified, the treaty becomes legally binding on the state under international law, and the state is obligated to comply with its provisions

Interpretation of treaty provisions

• Treaty interpretation involves determining the meaning and scope of the provisions contained within a treaty
• The Vienna Convention on the Law of Treaties (1969) provides guidelines for interpreting treaties, emphasizing the ordinary meaning of the text, the context, and the object and purpose of the treaty
• Interpretation may also consider subsequent agreements or practice between the parties, as well as relevant rules of international law

Customary international law

State practice requirement

• Customary international law is derived from the consistent and widespread practice of states, which is accepted as law
• State practice must be general, consistent, and representative of a significant number of states across different regions and legal systems
• Examples of state practice include diplomatic acts, legislation, court decisions, and official statements

Opinio juris requirement

• In addition to state practice, customary international law requires opinio juris, or the belief that the practice is carried out as a legal obligation
• Opinio juris distinguishes legal norms from mere customs or habits and indicates that states consider the practice to be legally binding
• Evidence of opinio juris can be found in public statements, diplomatic correspondence, and voting patterns in international organizations

Regional vs global customs

• Customary international law can develop at both regional and global levels
• Regional customs may emerge among states in a particular geographic area or with shared cultural, historical, or economic ties (Latin American diplomatic asylum)
• Global customs are those that are recognized and practiced by a vast majority of states worldwide (prohibition of torture, respect for diplomatic immunity)

General principles of law

Principles common to major legal systems

• General principles of law are legal principles that are common to the major legal systems of the world
• These principles are derived from the domestic laws of states and are applied in the context of international law to fill gaps or resolve ambiguities
• Examples of general principles include the principles of good faith, res judicata (a matter already judged), and the prohibition of abuse of rights

Equity and fairness in international law

• Equity and fairness are important considerations in the application and interpretation of international law
• Equitable principles, such as the equitable delimitation of maritime boundaries or the equitable utilization of shared natural resources, seek to balance the rights and interests of states
• The concept of fairness ensures that international law is applied in a just and reasonable manner, taking into account the specific circumstances of each case

Judicial decisions in international law

International Court of Justice rulings

• The International Court of Justice (ICJ) is the principal judicial organ of the United Nations and plays a significant role in the development of international law
• ICJ rulings are binding on the parties to the case and contribute to the interpretation and clarification of international legal principles
• Notable ICJ cases include the Nicaragua v. United States case (1986) on the use of force and the Gabčíkovo-Nagymaros Project case (1997) on environmental law and state responsibility

Decisions of other international tribunals

• In addition to the ICJ, other international tribunals, such as the International Criminal Court (ICC) and the International Tribunal for the Law of the Sea (ITLOS), contribute to the development of international law in their respective areas of jurisdiction
• These tribunals interpret and apply international law in the context of specific cases, helping to clarify legal norms and principles
• For example, the ITLOS has issued important decisions on the delimitation of maritime boundaries and the conservation of marine resources

Precedential value of judicial decisions

• While not formally binding on other states or tribunals, judicial decisions of international courts and tribunals have persuasive value and contribute to the development of international law
• Decisions of the ICJ and other international tribunals are often cited by states, scholars, and subsequent cases as authoritative interpretations of international law
• The precedential value of judicial decisions helps to ensure consistency and predictability in the application of international legal principles

Writings of publicists

Influence of scholarly works

• The writings of publicists, or legal scholars and experts, play a significant role in the development and interpretation of international law
• Scholarly works, such as treatises, articles, and commentaries, provide valuable insights into the meaning and application of international legal principles
• While not directly binding, the writings of publicists are often referred to by states, courts, and practitioners as persuasive authority and can shape the understanding and evolution of international law

Most highly qualified publicists

• The most highly qualified publicists are those scholars who are recognized as leading experts in their fields of international law
• These publicists are often cited by states and tribunals due to their extensive knowledge, experience, and contributions to the study and development of international law
• Examples of highly qualified publicists include Hersch Lauterpacht, Ian Brownlie, and James Crawford, whose works have had a significant impact on the understanding and application of international law

Relationship between international and domestic law

Monist vs dualist approaches

• The relationship between international and domestic law is conceptualized through two main approaches: monism and dualism
• Monist systems view international law and domestic law as part of a single, unified legal system, with international law taking precedence over domestic law in case of conflict
• Dualist systems treat international law and domestic law as separate and distinct legal orders, requiring the incorporation of international law into the domestic legal system for it to have direct effect

Incorporation of international law into domestic systems

• States incorporate international law into their domestic legal systems through various methods, depending on their constitutional and legal frameworks
• Some states automatically incorporate international law into their domestic law upon ratification of a treaty (e.g., the Netherlands), while others require implementing legislation to give effect to international obligations (e.g., the United Kingdom)
• The manner in which international law is incorporated into domestic law determines its status and applicability within the domestic legal system, as well as the ability of individuals to invoke international legal provisions in domestic courts

Subjects of international law

States as primary subjects

• States are the primary subjects of international law, possessing rights and obligations under international legal norms
• As sovereign entities, states have the capacity to enter into treaties, participate in the creation of customary international law, and bring claims before international tribunals
• The legal personality of states under international law is based on the criteria of the Montevideo Convention (1933): a permanent population, a defined territory, government, and the capacity to enter into relations with other states

International organizations as subjects

• International organizations, such as the United Nations and the European Union, have also acquired legal personality under international law
• The legal personality of international organizations is derived from their constituent treaties and the powers and functions conferred upon them by member states
• International organizations can enter into treaties, bring claims, and bear responsibility for their acts, within the scope of their mandates and competences

Individuals and international law

• Individuals have increasingly become subjects of international law, particularly in the areas of human rights and international criminal law
• International human rights law grants individuals rights and freedoms that states are obligated to respect and protect
• Under international criminal law, individuals can be held directly responsible for international crimes, such as genocide, war crimes, and crimes against humanity, and can be prosecuted before international criminal tribunals (International Criminal Court)

Enforcement of international law

Diplomatic measures and sanctions

• Diplomatic measures and sanctions are common tools used to enforce international law and encourage compliance by states
• Diplomatic measures include negotiations, mediation, and the use of good offices to resolve disputes and address violations of international law
• Sanctions, such as economic embargoes, travel bans, and asset freezes, can be imposed by states or international organizations to pressure states to comply with international legal obligations

International courts and tribunals

• International courts and tribunals play a crucial role in the enforcement of international law by adjudicating disputes and holding states and individuals accountable for violations
• The International Court of Justice (ICJ) adjudicates disputes between states and provides advisory opinions on legal questions referred by UN organs and specialized agencies
• Other international tribunals, such as the International Criminal Court (ICC) and ad hoc tribunals, prosecute individuals for international crimes and contribute to the fight against impunity

Use of force under international law

• The use of force is strictly regulated under international law, with the UN Charter prohibiting the threat or use of force against the territorial integrity or political independence of any state
• However, the UN Charter recognizes two exceptions to this prohibition: self-defense against an armed attack and the use of force authorized by the UN Security Council to maintain or restore international peace and security
• The use of force in self-defense must be necessary, proportional, and immediately reported to the Security Council, while Security Council-authorized actions require the approval of nine out of fifteen member states, including the concurring votes of the five permanent members (China, France, Russia, the United Kingdom, and the United States)