Chapter no. 5 .
International law
Imagine a small settlement with a number of properties on each of
which stands one house in which lives one family. This settlement
has no common government, parliament, court system or police
force.
The internal affairs of each family as much as the borders of each
property are respected as inviolable. The families have
predominantly bilateral relations with each other and engage in
commercial exchanges of goods and services.
It is commonly accepted that if the head of a family dies, the
established promises to other families and agreed exchanges are
respected by the heirs. When a new family from elsewhere wants to
settle in, the other families must agree first and recognize this new
property.
When disputes between families arise, they may result in violence,
especially if someone challenges an established border or intervenes
with a family’s interests.
It is commonly accepted that one may use force to defend one’s
interest in family and property. Other families do not intervene in
these disputes as long as their interests are not affected or they have
formed a special alliance with another family.
The concept of property, territory and border are there; a principle of
autonomy and supreme authority seems to apply to the families; and
the institution of contract certainly exists. You will also detect rules
of some sort in the form of established customs and you might even
identify a principle that says that ‘agreements need to be kept’.
Lawyers make use of the Latin phrase ‘pacta sunt servanda’ to
express this basic principle. Thus, some customary rules and
principles exist even if they are not called ‘law’ or written down in
any form.
The principle of sovereignty expressed this supreme and exclusive
authority of states over their territory, and it confirmed the equal
status of all states. Sovereignty continues to be the foundational
pillar of the international legal order.
Sovereign states are the masters of international law with no world
government above them. This meant that the validity of any legal
rule depended on the will of states or, conversely, that states are only
bound by authoritative legal norms that they have consented to.
International law governs relations between independent States. The
rules of law emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles
of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the
achievement of common aims.
What Law is International Law
How could international legal norms be effective if their validity
depended on the will of states, the very subjects international law
should govern?
Two scholars, Edward Hallett Carr and Hans Morgenthau, suggested
around this time that international law was particularly inept for
understanding the behavior of nations. They were disappointed by
what they identified as an idealistic belief in international law which,
after all, had not prevented – for the second time – a world war.
They proposed instead a more ‘realistic’ assessment of international
relations based on power and interest.
Much has changed since then. The international legal order has
diversified in every possible way. There are countless bilateral and
multilateral contracts between states (called treaties or conventions in
international law), and more than 5,000 intergovernmental
organizations and their different organs engage in the regulation and
administration of nearly all aspects of international life.
International legal norms pervade global affairs. Every time you
travel internationally, send an email, or update your social media
profiles, there are not only domestic but supranational legal norms
at play, including regional norms as in the European Union.
Be it border control, diplomatic and consular relations between
countries, the determination of flight and navigation routes, internet
regulation, privacy, the use of postal and telecommunication
services, industrial standards or cross-border environmental hazards
– international law permeates these areas as much as the better-
known fields of the protection of human rights, humanitarian
interventions and the fight against transnational terrorism.
It is also important that the occidental depiction of international law
is not the only one existing in the world. For example, international
treaties existed already in Africa and Asia over three thousand years
ago. Islamic legal thought, present in Persia, India, South Asia and
Europe, also had legal regulations of how to conduct hostilities at
least since the seventh century.
The contents of international law
One distinguishes broadly between domestic, regional and (public and
private) international law.
Domestic law stems from domestic lawmakers and regulates the life of the
citizens of a particular state.
Regional law, such as European Union law or the law of regional human
rights mechanisms, stems from regional intergovernmental institutions
and addresses the governments and individuals of a particular
geographical region or legal regime.
Public international law is the subject of this chapter and addresses – in
most general terms – relations involving states, intergovernmental
organizations and non-state actors, which include today individuals, non-
governmental organizations (NGOs) and private corporations.
Private international law concerns conflicts of laws that may arise in
cases where the domestic laws of different states could apply, for example
in cases of cross-border e-commerce, marriage.
Within public international law, a distinction is traditionally drawn
between the law of peace and the law of war (humanitarian law).:
The law of peace regulates peaceful relations and includes such
subject matters as international treaty law, the law of diplomatic and
consular relations, international organization law, the law of state
responsibility, the law of the sea, the environment and outer space
or international economic law.
International humanitarian law (IHL) is the law of armed conflicts
and regulates the conduct of international and non-international
hostilities. In times of war, the use of force, including the killing of
human beings, is not prohibited.
International humanitarian law regulates, among other things, the
methods and means of warfare and the protection of certain
categories of persons – for example, the sick and wounded,
prisoners of war and civilians.
Who makes international law
? and to whom does it apply
You have seen already that traditionally only states were
subjects of international law and bearers of privileges and
obligations.
Privileges included sovereign status, immunities, jurisdiction
or membership in international organizations, for example.
Obligations towards other states arose from voluntary
contracts, from the principle of non-intervention or from
responsibilities for wrongful acts.
The status of a sovereign state implied full membership in the
international society of states.
?How is international law made
The most important and most concrete sources of international law
are bilateral and multilateral treaties. Multilateral treaties are
usually prepared during long negotiations at diplomatic state
conferences where a final treaty text is adopted and then opened for
signature and ratification by states. When an agreed number of
states have ratified the treaty, it enters into force and becomes
binding on the member states.
Article 38 of the Statute of the International Court of Justice lists as
sources of international law on which the court may rely in its
decisions: treaties, customary international law, general
principles of law that exist in most domestic legal systems (such
as behaving in ‘good faith’) and, as a subsidiary means, also
judicial decisions and scholarly writings.
Global organization: The United Nations era
The end of the Second World War and the end of the Cold War are
probably the most significant historical watersheds in the
development of recent public international law.
The end of the Second World War in 1945 led to the establishment of
the United Nations and the rapid development of several areas of
international law, including human rights law, international criminal
law and international economic law.
The United Nations is the most important global intergovernmental
organization with major offices in New York, Geneva, Nairobi and
Vienna. It was established with the principal aim to ensure peace and
security through international co-operation and collective measures.
As of 2021, it has 193 member states. Article 2 of the UN Charter,
the founding treaty of the United Nations, confirms as guiding
principles the sovereign equality of the member states, the peaceful
settlement of disputes, the prohibition of the use of force and the
principle of non-intervention.
Delegates of all member states meet once a year during the
General Assembly to discuss pertinent issues of world politics
and vote on non-binding resolutions. The Security Council is
the highest executive organ of the United Nations in which the
representatives of ten selected member states and five states
with permanent seats decide on issues of peace and security
through binding resolutions, which may result in economic
sanctions or even military actions.
The ‘permanent five’ (the People’s Republic of China, France,
Russia, the United Kingdom and the United States) hold the
privilege of a veto right allowing them to prevent the adoption
of resolutions of the Security Council on any substantial (as
opposed to procedural) issues.
Major reform initiatives of the composition or voting
procedures of the Security Council have been unsuccessful so
far.
This taints the effectiveness and the democratic legitimacy of the
Security Council and, especially during the Cold War, it severely
constrained the Security Council as two of its key members (the
United States and the Soviet Union) were engaged in an ideological
conflict. Politically, however, the right to veto was a necessary
concession to ensure the participation of the most powerful nations
in a world organization.
Numerous principal and subsidiary UN organs and specialised
agencies engage in the application, enforcement and development of
international law.
The Offices of the High Commissioners for Human Rights and
Refugees do important work in the field where their staff endeavour
to uphold international law often in crisis situations. The United
Nations Educational, Scientific and Cultural Organization
(UNESCO) fulfils a crucial function in disseminating knowledge
about international law by promoting education and research on
human rights, justice and the rule of law.
Community and governance: The changing
structure of international law
The existence of a world organization, the legal prohibition of
the use of force, the establishment of a system of collective
security and the protection of human rights have caused
fundamental changes in the international legal order.
International lawyers and politicians speak frequently of the
‘international community’ that co-operates to pursue
community interests which cannot be achieved by single states
alone. These community interests may range from
environmental challenges and cultural heritage to issues of
human security.
The protection of the individual from severe atrocities has thus
become a matter of national, regional and international concern. This
means that states can no longer claim that gross human rights
violations are internal matters and that they are protected by their
sovereignty.
Today there are countless actors that engage in the making,
interpretation, use and enforcement of international norms.
For example, a NATO-led intervention in Kosovo in 1999 was
executed without the authorisation of the UN Security Council.
NATO (the North Atlantic Treaty Organiza tion) is a collective
security organization of Western states.
This multitude of norms, legal regimes, actors and normative
processes is reflected in more recent approaches to international law
that focus more on pluralistic governance processes than on a unified
legal system, and more on informal law-making than on formal
sources.
