International law, also known aspublic international law andthe law of nations, is the set ofrules, norms,legal customs and standards thatstates and other actors feel an obligation to, and generally do, obey in their mutual relations. In international relations, actors are simply the individuals and collective entities, such as states,international organizations, and non-state groups, which can make behavioral choices, whether lawful or unlawful. Rules are formal, typically written expectations that outline required behavior, while norms are informal, often unwritten guidelines about appropriate behavior that are shaped by custom and social practice.[1] It establishes norms for states across a broad range of domains, includingwar anddiplomacy,economic relations, andhuman rights.
International law differs from state-baseddomestic legal systems in that it operates largely throughconsent, since there is no universally accepted authority to enforce it uponsovereign states. States and non-state actors may choose to not abide by international law, and even to breach a treaty, but such violations, particularly ofperemptory norms, can be met with disapproval by others and in some cases coercive action includingdiplomacy,economic sanctions, and war.
The modern term "international law" was originally coined byJeremy Bentham in his 1789 bookIntroduction to the Principles of Morals and Legislation to replace the older law of nations, a direct translation of the late medieval concepts ofius gentium, used byHugo Grotius, anddroits des gens, used byEmer de Vattel.[2][3] The definition of international law has been debated; Bentham referred specifically to relationships between states which has been criticised for its narrow scope.[4]Lassa Oppenheim defined it in his treatise as "a law between sovereign and equal states based on the common consent of these states" and this definition has been largely adopted by international legal scholars.[5]
There is a distinction between public andprivate international law; the latter is concerned with whether national courts can claimjurisdiction over cases with a foreign element and the application of foreign judgments in domestic law, whereas public international law covers rules with an international origin.[6] The difference between the two areas of law has been debated as scholars disagree about the nature of their relationship.Joseph Story, who originated the term "private international law", emphasised that it must be governed by the principles of public international law but other academics view them as separate bodies of law.[7][8] Another term, transnational law, is sometimes used to refer to a body of both national and international rules that transcend the nation state, although some academics emphasise that it is distinct from either type of law. It was defined byPhilip Jessup as "all law which regulates actions or events that transcend national frontiers".[9]
A more recent concept issupranational law, which was described in a 1969 paper as "[a] relatively new word in the vocabulary of politics".[10] Systems of supranational law arise when nations explicitly cede their right to make decisions to this system's judiciary and legislature, which then have the right to make laws that are directly effective in each member state.[10][11] This has been described as "a level of international integration beyond mere intergovernmentalism yet still short of a federal system".[10] The most common example of asupranational system is theEuropean Union.[11]
The Hittite version of theTreaty of Kadesh, among the earliest extant examples of an international agreement[12]
With origins tracing back toantiquity,[13] states have a long history of negotiating interstate agreements. An initial framework was conceptualised by the Ancient Romans and this idea ofius gentium has been used by various academics to establish the modern concept of international law. Among the earliest recorded examples arepeace treaties between theMesopotamian city-states ofLagash andUmma (approximately 3100 BCE), andan agreement between theEgyptian pharaoh,Ramesses II, and theHittite king,Ḫattušili III, concluded in 1279 BCE.[12] Interstate pacts and agreements were negotiated and agreed upon bypolities across the world, from the easternMediterranean toEast Asia.[14] InAncient Greece, manyearly peace treaties were negotiated between itscity-states and, occasionally, with neighbouring states.[15] TheRoman Empire established an early conceptual framework for international law,jus gentium, which governed the status of foreigners living in Rome and relations between foreigners andRoman citizens.[16][17] Adopting the Greek concept ofnatural law, the Romans conceived ofjus gentium as being universal.[18] However, in contrast to modern international law, the Roman law of nations applied to relations with and between foreign individuals rather than among political units such as states.[19]
Beginning with theSpring and Autumn period of the eighth century BCE, China was divided into numerous states that were often at war with each other. Rules for diplomacy and treaty-making emerged, including notions regardingjust grounds for war, the rights of neutral parties, and the consolidation and partition of states; these concepts were sometimes applied to relations withbarbarians along China's western periphery beyond theCentral Plains.[20][21] The subsequentWarring States period saw the development of two major schools of thought,Confucianism andLegalism, both of which held that the domestic and international legal spheres were closely interlinked, and sought to establish competing normative principles to guide foreign relations.[21][22] Similarly, theIndian subcontinent was divided into various states, which over time developed rules of neutrality,treaty law, and international conduct, and established both temporary and permanentembassies.[23][24]
Following thecollapse of the western Roman Empire in the fifth century CE, Europe fragmented into numerous often-warring states for much of the next five centuries. Political power was dispersed across a range of entities, including theChurch,mercantile city-states, and kingdoms, most of which had overlapping and ever-changing jurisdictions. As in China and India, these divisions prompted the development of rules aimed at providing stable and predictable relations. Early examples includecanon law, which governedecclesiastical institutions and clergy throughout Europe; thelex mercatoria ("merchant law"), which concerned trade and commerce; and various codes ofmaritime law, such as theRolls of Oléron— aimed at regulating shipping in North-western Europe — and the laterLaws of Wisby, enacted among the commercialHanseatic League of northern Europe and theBaltic region.[25]
In theIslamic world,Muhammad al-Shaybani publishedAl-Siyar Al-Kabīr in the eighth century, which served as a fundamental reference work forsiyar, a subset ofSharia law, which governed foreign relations.[26][27] This was based on the division of the world into three categories: thedar al-Islam, where Islamic law prevailed; thedar al-sulh, non-Islamic realms that concluded an armistice with a Muslim government; and thedar al-harb, non-Islamic lands which were contested throughjihad.[28][29]Islamic legal principles concerningmilitary conduct served as precursors to moderninternational humanitarian law and institutionalised limitations on military conduct, including guidelines for commencing war, distinguishing between civilians and combatants and caring for the sick and wounded.[30][31]
During the EuropeanMiddle Ages, international law was concerned primarily with the purpose and legitimacy of war, seeking to determine what constituted"just war".[32] The Greco-Roman concept of natural law was combined with religious principles by Jewish philosopherMaimonides (1135–1204) and Christian theologianThomas Aquinas (1225–1274) to create the new discipline of the "law of nations", which unlike its eponymous Roman predecessor, applied natural law to relations between states.[33][34] In Islam, a similar framework was developed wherein the law of nations was derived, in part, from the principles and rules set forth in treaties with non-Muslims.[35]
The 15th century witnessed a confluence of factors that contributed to an accelerated development of international law. Italian juristBartolus de Saxoferrato (1313–1357) was considered the founder ofprivate international law. Another Italian jurist,Baldus de Ubaldis (1327–1400), provided commentaries and compilations of Roman, ecclesiastical, andfeudal law, creating an organised source of law that could be referenced by different nations.[citation needed]Alberico Gentili (1552–1608) took a secular view to international law, authoring various books on issues in international law, notablyLaw of War, which provided comprehensive commentary on the laws of war and treaties.[36]Francisco de Vitoria (1486–1546), who was concerned with the treatment ofindigenous peoples by Spain, invoked the law of nations as a basis for their innate dignity and rights, articulating an early version of sovereign equality between peoples.[37]Francisco Suárez (1548–1617) emphasised that international law was founded upon natural law and human positive law.[38][39]
Dutch juristHugo Grotius (1583–1645) is widely regarded as the father of international law,[40] being one of the first scholars to articulate an international order that consists of a "society of states" governed not by force orwarfare but by actual laws, mutual agreements, and customs.[41] Grotius secularised international law;[42] his 1625 work,De Jure Belli ac Pacis, laid down a system ofprinciples of natural law that bind all nations regardless of local custom or law.[40] He inspired two nascent schools of international law, the naturalists and the positivists.[43] In the former camp was German juristSamuel von Pufendorf (1632–1694), who stressed the supremacy of the law of nature over states.[44][45] His 1672 work,Of the Law of Nature and Nations, expanded on the theories of Grotius and grounded natural law toreason and the secular world, asserting that it regulated only external acts of states.[44] Pufendorf challenged theHobbesian notion that the state of nature was one of war and conflict, arguing that the natural state of the world is actually peaceful but weak and uncertain without adherence to the law of nations.[46] The actions of a state consist of nothing more than the sum of the individuals within that state, thereby requiring the state to apply a fundamental law of reason, which is the basis of natural law. He was among the earliest scholars to expand international law beyond European Christian nations, advocating for its application and recognition among all peoples on the basis of shared humanity.[47]
In contrast,positivist writers, such asRichard Zouche (1590–1661) in England andCornelis van Bynkershoek (1673–1743) in the Netherlands, argued that international law should derive from the actual practice of states rather than Christian or Greco-Roman sources. The study of international law shifted away from its core concern on the law of war and towards the domains such as the law of the sea and commercial treaties.[48] The positivist school grew more popular as it reflected accepted views of state sovereignty and was consistent with the empiricist approach to philosophy that was then gaining acceptance in Europe.[49]
The developments of the 17th century culminated at the conclusion of thePeace of Westphalia in 1648, which is considered the seminal event in international law.[50] The resultingWestphalian sovereignty is said to have established the current international legal order characterised by independentnation states, which have equal sovereignty regardless of their size and power, defined primarily by non-interference in the domestic affairs of sovereign states, although historians have challenged this narrative.[51] The idea ofnationalism further solidified the concept and formation of nation-states.[52] Elements of the naturalist and positivist schools were synthesised, notably by German philosopherChristian Wolff (1679–1754) and Swiss juristEmer de Vattel (1714–1767), both of whom sought a middle-ground approach.[53][54] During the 18th century, the positivist tradition gained broader acceptance, although the concept of natural rights remained influential in international politics, particularly through the republican revolutions of the United States and France.[citation needed]
Until the mid-19th century, relations between states were dictated mostly by treaties, agreements between states to behave in a certain way, unenforceable except by force, and nonbinding except as matters of honour and faithfulness.[citation needed] One of the first instruments of modern armed conflict law was theLieber Code of 1863, which governed the conduct of warfare during theAmerican Civil War, and is noted for codifying rules and articles of war adhered to by nations across the world, including the United Kingdom, Prussia, Serbia and Argentina.[55] In the years that followed, numerous other treaties and bodies were created to regulate the conduct of states towards one another, including thePermanent Court of Arbitration in 1899, and theHague andGeneva Conventions, the first of which was passed in 1864.[56][57]
Colonial expansion by European powers reached its peak in the late 19th century and its influence began to wane following the unprecedented bloodshed ofWorld War I, which spurred the creation of international organisations.Right of conquest was generally recognized as international law beforeWorld War II.[58] TheLeague of Nations was founded to safeguard peace and security.[59][60] International law began to incorporate notions such asself-determination andhuman rights.[61] TheUnited Nations (UN) was established in 1945 to replace the League, with an aim of maintaining collective security.[62] A more robust international legal order followed, buttressed by institutions such as theInternational Court of Justice (ICJ) and theUN Security Council (UNSC).[63] TheInternational Law Commission (ILC) was established in 1947 to develop and codify international law.[62]
In the 1940s through the 1970s, the dissolution of the Soviet bloc anddecolonisation across the world resulted in the establishment of scores of newly independent states.[64] As these former colonies became their own states, they adopted European views of international law.[65] A flurry of institutions, ranging from theInternational Monetary Fund (IMF) and theInternational Bank for Reconstruction and Development (World Bank) to theWorld Health Organization furthered the development of a multilateralist approach as states chose to compromise on sovereignty to benefit from international cooperation.[66] Since the 1980s, there has been an increasing focus on the phenomenon ofglobalisation and on protecting human rights on the global scale, particularly when minorities or indigenous communities are involved, as concerns are raised that globalisation may be increasing inequality in the international legal system.[67]
Thesources of international law applied by the community of nations are listed in Article 38(1) of theStatute of the International Court of Justice, which is considered authoritative in this regard. These categories are, in order,international treaties,customary international law, general legal principles and judicial decisions and the teachings of prominent legal scholars as "a subsidiary means for the determination of rules of law".[68] It was originally considered that the arrangement of the sources sequentially would suggest an implicit hierarchy of sources; however, the statute does not provide for a hierarchy and other academics have argued that therefore the sources must be equivalent.[69][70]
General principles of law have been defined in the Statute as "general principles of law recognized by civilized nations" but there is no academic consensus about what is included within this scope.[71][72] They are considered to be derived from both national and international legal systems, although including the latter category has led to debate about potential cross-over with international customary law.[73][74] The relationship of general principles to treaties or custom has generally been considered to be "fill[ing] the gaps" although there is still no conclusion about their exact relationship in the absence of a hierarchy.[75]
A treaty is defined in Article 2 of theVienna Convention on the Law of Treaties (VCLT) as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".[76] The definition specifies that the parties must be states, however international organisations are also considered to have the capacity to enter treaties.[76][77] Treaties are binding through the principle ofpacta sunt servanda, which allows states to create legal obligations on themselves through consent.[78][79] The treaty must be governed by international law; however it will likely be interpreted by national courts.[80] The VCLT, which codifies several bedrock principles of treaty interpretation, holds that a treaty "shall be interpreted ingood faith 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".[81] This represents a compromise between three theories of interpretation: the textual approach which looks to the ordinary meaning of the text, the subjective approach which considers factors such as the drafters' intention, and the teleological approach which interprets a treaty according to its objective and purpose.[81][82]
A state must express its consent to be bound by a treaty through signature, exchange of instruments, ratification, acceptance, approval or accession. Accession refers to a state choosing to become party to a treaty that it is unable to sign, such as when establishing a regional body. Where a treaty states that it will be enacted through ratification, acceptance or approval, the parties must sign to indicate acceptance of the wording but there is no requirement on a state to later ratify the treaty, although they may still be subject to certain obligations.[83] When signing or ratifying a treaty, a state can make a unilateral statement to negate or amend certain legal provisions which can have one of three effects: the reserving state is bound by the treaty but the effects of the relevant provisions are precluded or changes, the reserving state is bound by the treaty but not the relevant provisions, or the reserving state is not bound by the treaty.[84][85] An interpretive declaration is a separate process, where a state issues a unilateral statement to specify or clarify a treaty provision. This can affect the interpretation of the treaty but it is generally not legally binding.[86][87] A state is also able to issue a conditional declaration stating that it will consent to a given treaty only on the condition of a particular provision or interpretation.[88]
Article 54 of the VCLT provides that either party may terminate or withdraw from a treaty in accordance with its terms or at any time with the consent of the other party, with 'termination' applying to a bilateral treaty and 'withdrawal' applying to a multilateral treaty.[89] Where a treaty does not have provisions allowing for termination or withdrawal, such as the Genocide Convention, it is prohibited unless the right was implied into the treaty or the parties had intended to allow for it.[90] A treaty can also be held invalid, including where parties act ultra vires or negligently, where execution has been obtained through fraudulent, corrupt or forceful means, or where the treaty contradicts peremptory norms.[91]
Customary international law requires two elements: a consistent practice of states and the conviction of those states that the consistent practice is required by a legal obligation, referred to asopinio juris.[92][93] Custom distinguishes itself from treaty law as it is binding on all states, regardless of whether they have participated in the practice, with the exception of states who have beenpersistent objectors during the process of the custom being formed and special or local forms of customary law.[94] The requirement for state practice relates to the practice, either through action or failure to act, of states in relation to other states or international organisations.[95] There is no legal requirement for state practice to be uniform or for the practice to be long-running, although the ICJ has set a high bar for enforcement in the cases ofAnglo-Norwegian Fisheries andNorth Sea Continental Shelf.[96] There has been legal debate on this topic with the only prominent view on the length of time necessary to establish custom explained byHumphrey Waldock as varying "according to the nature of the case".[97] The practice is not required to be followed universally by states, but there must be a "general recognition" by states "whose interests are specially affected".[98]
The second element of the test,opinio juris, the belief of a party that a particular action is required by the law is referred to as the subjective element.[99] The ICJ has stated indictum inNorth Sea Continental Shelf that, "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it".[100] A committee of theInternational Law Association has argued that there is a general presumption of anopinio juris where state practice is proven but it may be necessary if the practice suggests that the states did not believe it was creating a precedent.[100] The test in these circumstances is whetheropinio juris can be proven by the states' failure to protest.[101] Other academics believe that intention to create customary law can be shown by states including the principle in multiple bilateral and multilateral treaties, so that treaty law is necessary to form customs.[102]
The adoption of the VCLT in 1969 established the concept ofjus cogens, or peremptory norms, which are "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character".[103] Where customary or treaty law conflicts with a peremptory norm, it will be considered invalid, but there is no agreed definition ofjus cogens.[104] Academics have debated what principles are considered peremptory norms but the mostly widely agreed is the principle of non-use of force.[105] The next year, the ICJ definederga omnes obligations as those owed to "the international community as a whole", which included the illegality of genocide and human rights.[103]
There are generally two approaches to the relationship between international and national law, namely monism and dualism.[106] Monism assumes that international and national law are part of the same legal order.[107] Therefore, a treaty can directly become part of national law without the need for enacting legislation, although they will generally need to be approved by the legislature. Once approved, the content of the treaty is considered as a law that has a higher status than national laws. Examples of countries with a monism approach are France and the Netherlands.[108] The dualism approach considers that national and international law are two separate legal orders, so treaties are not granted a special status.[106][109] The rules in a treaty can only be considered national law if the contents of the treaty have been enacted first.[109] An example is the United Kingdom; after the country ratified theEuropean Convention on Human Rights, the convention was only considered to have the force of law in national law afterParliament passed theHuman Rights Act 1998.[110]
In practice, the division of countries between monism and dualism is often more complicated; countries following both approaches may accept peremptory norms as being automatically binding and they may approach treaties, particularly later amendments or clarifications, differently than they would approach customary law.[111] Many countries with older orunwritten constitutions do not have explicit provision for international law in their domestic system and there has been an upswing in support for monism principles in relation to human rights and humanitarian law, as most principles governing these concepts can be found in international law.[112]
A state is defined under Article 1 of theMontevideo Convention on the Rights and Duties of States as a legal person with a permanent population, a defined territory, government and capacity to enter relations with other states. There is no requirement on population size, allowing micro-states such as San Marino and Monaco to be admitted to the UN, and no requirement of fully defined boundaries, allowing Israel to be admitted despiteborder disputes. There was originally an intention that a state must haveself-determination, but now the requirement is for a stable political environment. The final requirement of being able to enter relations is commonly evidenced by independence and sovereignty.[113]
UN member states that at least one other member state does not recognise
Non-UN member states recognised by at least one UN member state
Non-UN member states recognised only by other non-UN member states
Under the principle ofpar in parem non habet imperium, all states aresovereign and equal,[114] butstate recognition often plays a significant role in political conceptions. A country may recognise another nation as a state and, separately, it may recognise that nation's government as being legitimate and capable of representing the state on the international stage.[115][116] There are two theories on recognition; the declaratory theory sees recognition as commenting on a current state of law which has been separately satisfied whereas the constitutive theory states that recognition by other states determines whether a state can be considered to have legal personality.[117] States can be recognised explicitly through a released statement or tacitly through conducting official relations, although some countries have formally interacted without conferring recognition.[118]
Throughout the 19th century and the majority of the 20th century, states were protected by absolute immunity, so they could not face criminal prosecution for any actions. However a number of countries began to distinguish betweenacta jure gestionis, commercial actions, andacta jure imperii, government actions; the restrictive theory of immunity said states were immune where they were acting in a governmental capacity but not a commercial one. The European Convention on State Immunity in 1972 and the UN Convention on Jurisdictional Immunities of States and their Property attempt to restrict immunity in accordance with customary law.[119]
Traditionally, sovereign states and theHoly See were the sole subjects of international law. With the proliferation ofinternational organisations over the last century, they have also been recognised as relevant parties.[124] One definition of international organisations comes from the ILC's 2011 Draft Articles on the Responsibility of International Organizations which in Article 2(a) states that it is "an organization established by treaty or other instrument governed by international law and possessing its own international legal personality".[125] This definition functions as a starting point but does not recognise that organisations can have no separate personality but nevertheless function as an international organisation.[125] TheUN Economic and Social Council has emphasised a split betweeninter-government organisations (IGOs), which are created by inter-governmental agreements, andinternational non-governmental organisations (INGOs).[126] All international organisations have members; generally this is restricted to states, although it can include other international organisations.[127] Sometimes non-members will be allowed to participate in meetings as observers.[128]
TheYearbook of International Organizations sets out a list of international organisations, which include the UN, the WTO, the World Bank and the IMF.[129][130] Generally organisations consist of a plenary organ, where member states can be represented and heard; an executive organ, to decide matters within the competence of the organisation; and an administrative organ, to execute the decisions of the other organs and handle secretarial duties.[131] International organisations will typically provide for their privileges and immunity in relation to its member states in their constitutional documents or in multilateral agreements, such as theConvention on the Privileges and Immunities of the United Nations.[132] These organisations also have the power to enter treaties, using theVienna Convention on the Law of Treaties between States and International Organizations or between International Organizations as a basis although it is not yet in force.[77] They may also have the right to bring legal claims against states depending, as set out inReparation for Injuries, where they have legal personality and the right to do so in their constitution.[133]
The UNSC has the power under Chapter VII of the UN Charter to take decisive and binding actions against states committing "a threat to the peace, breach of the peace, or an act of aggression" forcollective security although prior to 1990, it has only intervened once, in the case of Korea in 1950.[134][135] This power can only be exercised, however, where a majority of member states vote for it, as well as receiving the support of thepermanent five members of the UNSC.[136] This can be followed up with economic sanctions, military action, and similar uses of force.[137] The UNSC also has a wide discretion under Article 24, which grants "primary responsibility" for issues of international peace and security.[134] The UNGA, concerned during theCold War with the requirement that the USSR would have to authorise any UNSC action, adopted the"Uniting for Peace" resolution of 3 November 1950, which allowed the organ to pass recommendations to authorize the use of force. This resolution also led to the practice ofUN peacekeeping, which has been notably been used inEast Timor andKosovo.[138]
The ICJ operates as one of the six organs of the UN, based out ofthe Hague with a panel of fifteen permanent judges.[143] It has jurisdiction to hear cases involving states but cannot get involved in disputes involving individuals or international organizations. The states that can bring cases must be party to theStatute of the ICJ, although in practice most states are UN members and would therefore be eligible. The court hasjurisdiction over all cases that are referred to it and all matters specifically referred to in the UN Charter or international treaties, although in practice there are no relevant matters in the UN Charter.[144] The ICJ may also be asked by an international organisation to provide anadvisory opinion on a legal question, which are generally considered non-binding but authoritative.[145]
Conflict of laws, also known as private international law, was originally concerned withchoice of law, determining which nation's laws should govern a particular legal circumstance.[146][147] Historically thecomity theory has been used although the definition is unclear, sometimes referring to reciprocity and sometimes being used as a synonym for private international law.[148][149] Story distinguished it from "any absolute paramount obligation, superseding all discretion on the subject".[149] There are three aspects to conflict of laws – determining which domestic court has jurisdiction over a dispute, determining if a domestic court has jurisdiction anddetermining whether foreign judgments can be enforced. The first question relates to whether the domestic court or a foreign court is best placed to decide the case.[150] When determining the national law that should apply, thelex causae is the law that has been chosen to govern the case, which is generally foreign, and thelexi fori is the national law of the court making the determination. Some examples arelex domicilii, the law of the domicile, andles patriae, the law of the nationality.[151]
The rules which are applied to conflict of laws will vary depending on the national system determining the question. There have been attempts to codify an international standard to unify the rules so differences in national law cannot lead to inconsistencies, such as through theHague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and theBrussels Regulations.[152][153][154] These treaties codified practice on the enforcement of international judgments, stating that a foreign judgment would be automatically recognised and enforceable where required in the jurisdiction where the party resides, unless the judgement was contrary to public order or conflicted with a local judgment between the same parties. On a global level, theNew York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was introduced in 1958 to internationalise the enforcement ofarbitral awards, although it does not have jurisdiction over court judgments.[155]
A state must prove that it has jurisdiction before it can exercise its legal authority.[156] This concept can be divided between prescriptive jurisdiction, which is the authority of a legislature to enact legislation on a particular issue, and adjudicative jurisdiction, which is the authority of a court to hear a particular case.[157] This aspect of private international law should first be resolved by reference to domestic law, which may incorporate international treaties or other supranational legal concepts, although there are consistent international norms.[158] There are five forms of jurisdiction which are consistently recognised in international law; an individual or act can be subject to multiple forms of jurisdiction.[159][160] The first is theterritorial principle, which states that a nation has jurisdiction over actions which occur within its territorial boundaries.[161] The second is thenationality principle, also known as the active personality principle, whereby a nation has jurisdiction over actions committed by its nationals regardless of where they occur. The third is the passive personality principle, which gives a country jurisdiction over any actions which harm its nationals.[162] The fourth is the protective principle, where a nation has jurisdiction in relation to threats to its "fundamental national interests". The final form isuniversal jurisdiction, where a country has jurisdiction over certain acts based on the nature of the crime itself.[162][163]
Non-domestic human rights enforcement operates at both the international and regional levels. Established in 1993, theOffice of the UN High Commissioner for Human Rights supervises Charter-based and treaty-based procedures.[165] The former are based on the UN Charter and operate under theUN Human Rights Council, where each global region is represented by elected member states. The Council is responsible forUniversal Periodic Review, which requires each UN member state to review its human rights compliance every four years, and for special procedures, including the appointment ofspecial rapporteurs, independent experts and working groups.[166] The treaty-based procedure allows individuals to rely on the nine primary human rights treaties:
The regional human rights enforcement systems operate in Europe, Africa and the Americas through theEuropean Court of Human Rights, theInter-American Court of Human Rights and theAfrican Court on Human and Peoples' Rights.[168] International human rights has faced criticism for its Western focus, as many countries were subject to colonial rule at the time that the UDHR was drafted, although many countries in theGlobal South have led the development of human rights on the global stage in the intervening decades.[169]
International labour law is generally defined as "the substantive rules of law established at the international level and the procedural rules relating to their adoption and implementation". It operates primarily through theInternational Labor Organization (ILO), a UN agency with the mission of protecting employment rights which was established in 1919.[170][171] The ILO has a constitution setting out a number of aims, including regulating work hours and labour supply, protecting workers and children and recognising equal pay and the right to free association, as well as theDeclaration of Philadelphia of 1944, which re-defined the purpose of the ILO.[171][172] The 1998Declaration on Fundamental Principles and Rights at Work further binds ILO member states to recognise fundamental labour rights including free association, collective bargaining and eliminating forced labour, child labour and employment discrimination.[172]
The ILO have also created labour standards which are set out in theirconventions and recommendations. Member states then have the choice as to whether or not to ratify and implement these standards.[172] The secretariat of the ILO is the International Labour Office, which can be consulted by states to determine the meaning of a convention, which forms the ILO's case law. Although theRight to Organise Convention does not provide an explicit right to strike, this has been interpreted into the treaty through case law.[173][174] The UN does not specifically focus on international labour law, although some of its treaties cover the same topics. Many of the primary human rights conventions also form part of international labour law, providing protection in employment and against discrimination on the grounds of gender and race.[175]
Climate change has been one of the most important and heavily debated topics in recent environmental law. TheUnited Nations Framework Convention on Climate Change, intended to set out a framework for the mitigation ofgreenhouse gases and responses to resulting environmental changes, was introduced in 1992 and came into force two years later. As of 2023, 198 states were a party.[179][180] Separate protocols have been introduced throughconferences of the parties, including theKyoto Protocol which was introduced in 1997 to set specific targets for greenhouse gas reduction and the 2015Paris Agreement which set the goal of keeping global warming at least below 2 °C (3.6 °F) above pre-industrial levels.[181]
Individuals and organisations have some rights under international environmental law as theAarhus Convention in 1998 set obligations on states to provide information and allow public input on these issues.[182] However few disputes under the regimes set out in environmental agreements are referred to the ICJ, as the agreements tend to specify their compliance procedures. These procedures generally focus on encouraging the state to once again become compliant through recommendations but there is still uncertainty on how these procedures should operate and efforts have been made to regulate these processes although some worry that this will undercut the efficiency of the procedures themselves.[183]
Legal territory can be divided into four categories. There isterritorial sovereignty which covers land and territorial sea, including the airspace above it and thesubsoil below it, territory outside the sovereignty of any state,res nullius which is not yet within territorial sovereignty but is territory that is legally capable of being acquired by a state andres communis which is territory that cannot be acquired by a state.[184] There have historically been five methods ofacquiring territorial sovereignty, reflecting Roman property law: occupation, accretion,cession,conquest andprescription.[185]
Thelaw of the sea is the area of international law concerning the principles and rules by which states and other entities interact in maritime matters. It encompasses areas and issues such as navigational rights, sea mineral rights, and coastal waters jurisdiction.[186] The law of the sea was primarily composed of customary law until the 20th century, beginning with theLeague of Nations Codification Conference in 1930, the UN Conference on the Law of the Sea and the adoption of the UNCLOS in 1982.[187] The UNCLOS was particularly notable for making international courts and tribunals responsible for the law of the sea.[188]
Maritime Zones under International Law
The boundaries of a nation'sterritorial sea were initially proposed to be three miles in the late 18th century.[189] The UNCLOS instead defined it as being at most 12 nautical miles from thebaseline (usually the coastal low-water mark) of a state; both military and civilian foreign ships are allowedinnocent passage through these waters despite the sea being within the state's sovereignty.[190][191] A state can have jurisdiction beyond its territorial waters where it claims a contiguous zone of up to 24 nautical miles from its baseline for the purpose of preventing the infringement of its "customs, fiscal, immigration and sanitary regulations".[192] States are also able to claim anexclusive economic zone (EEZ) following passage of the UNCLOS, which can stretch up to 200 nautical miles from the baseline and gives the sovereign state rights over natural resources. Some states have instead chosen to retain their exclusive fishery zones, which cover the same territory.[193] There are specific rules in relation to the continental shelf, as this can extend further than 200 nautical miles. TheInternational Tribunal for the Law of the Sea has specified that a state has sovereign rights over the resources of the entirecontinental shelf, regardless of its distance from the baseline, but different rights apply to the continental shelf and the water column above it where it is further than 200 nautical miles from the coast.[194]
The UNCLOS defines thehigh seas as all parts of the sea that are not within a state's EEZ, territorial sea or internal waters.[195] There are six freedoms of the high seas—navigation, overflight, laying submarine cables and pipelines, constructing artificial islands, fishing and scientific research—some of which are subject to legal restrictions.[196] Ships in the high seas are deemed to have the nationality of the flag that they have the right to fly and no other state can exercise jurisdiction over them; the exception is ships used for piracy, which are subject to universal jurisdiction.[197]
The law relating to the initiation of armed conflict isjus ad bellum.[199] This was codified in 1928 in theKellogg–Briand Pact, which stated that conflicts should be settled through peaceful negotiations with the exception, through reservations drafted by some state parties, ofself-defence.[200] These fundamental principles were re-affirmed in theUN Charter, which provided for "an almost absolute prohibition on the use of force", with the only three exceptions.[201][202] The first involves force authorised by the UNSC, as the entity is responsible in the first instance for responding to breaches or threats to the peace and acts of aggression, including theuse of force orpeacekeeping missions.[203] The second exception is where a state is acting in individual or collective self-defence. A state is allowed to act in self-defence in the case of an "armed attack" but the intention behind this exception has been challenged, particularly asnuclear weapons have become more common, with many states relying instead on the customary right of self-defence as set out in theCaroline test.[204][205] The ICJ considered collective self-defence inNicaragua v. United States, where the U.S. unsuccessfully argued that it had mined harbours in Nicaragua in pre-emption of an attack by theSandinista government against another member of theOrganization of American States.[206] The final exception is where the UNSC delegates its responsibility for collective security to aregional organisation, such asNATO.[207]
On humanitarian grounds, the use of landmines (Ottawa Treaty) and cluster munitions (CCM) is prohibited under international law.
International humanitarian law (IHL) is an effort to "mitigate the human suffering caused by war" and it is often complementary to the law of armed conflict and international human rights law.[208] The concept ofjus in bello (law in war) covers IHL, which is distinct fromjus ad bellum.[199] Its scope lasts from the initiation of conflict until a peaceful settlement is reached.[209] There are two main principles in IHL; theprinciple of distinction dictates thatcombatants andnon-combatants must be treated differently and the principle of not causing disproportionate suffering to combatants. InLegality of the Threat or Use of Nuclear Weapons, the ICJ described these concepts as "intransgressible principles of international customary law".[210]
There have been various agreements to outlaw particular types of weapons, such as theChemical Weapons Convention and theBiological Weapons Convention. The use of nuclear weapons was determined to be in conflict with principles of IHL by the ICJ in 1995, although the court also held that it "cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence."[213] Multiple treaties have attempted to regulate the use of these weapons, including theNon-Proliferation Treaty and theJoint Comprehensive Plan of Action, but key states have failed to sign or have withdrawn. There have been similar debates on the use ofdrones andcyberwarefare on the international stage.[214]
Initially these crimes were intended to be prosecuted by national courts and subject to their domestic procedures.[220] The Geneva Conventions of 1949, the Additional Protocols of 1977 and the 1984UN Convention against Torture mandated that the national courts of the contracting countries must prosecute these offenses where the perpetrator is on their territory orextradite them to any other interested state.[221] It was in the 1990s that twoad hoc tribunals, theInternational Criminal Tribunal for the Former Yugoslavia (ICTY) and theInternational Criminal Tribunal for Rwanda (ICTR), were established by the UNSC to address specific atrocities.[222][223] The ICTY had authority to prosecute war crimes, crimes against humanity and genocide occurring inYugoslavia after 1991 and the ICTR had authority to prosecute genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions during the1994 Rwandan genocide.[224][225]
TheInternational Criminal Court (ICC), established by the1998 Rome Statute, is the first and only permanent international court to prosecute genocide, war crimes, crimes against humanity, and thecrime of aggression.[226] There are 123 state parties to the ICC although a number of states have declared their opposition to the court; it has been criticised by African countries including The Gambia and Kenya for "imperialist" prosecutions.[227][228] One particular aspect of the court that has received scrutiny is the principle of complementarity, whereby the ICC only has jurisdiction if the national courts of a state with jurisdiction are "unwilling or unable to prosecute" or where a state has investigated but chosen not to prosecute a case.[229][230] The United States has a particularlycomplicated relationship with the ICC; originally signing the treaty in 2000, the US stated in 2002 that it did not intend to become a party as it believed the ICC threatened its national sovereignty and the country does not recognise the court's jurisdiction.[231][232]
International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of 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 coercive power that ensures compliance.[236][237] Some scholars view compliance failure as a problem of enforcement whereby states can be incentivized to follow international law due to international inducements, reciprocity, concerns about reputation, or domestic political factors.[238] Other scholars see compliance failure as rooted in a lack ofstate capacity where a willing state is incapable of fully following international legal commitments.[238] Rationalist choice theorists have referred to the "Three Rs" that lead states to comply with international law: Reciprocity, Reputation, and Retaliation.[239] Constructivist scholars emphasize how states are socialized into complying with international law by internalizing norms and seeking status and reputation.[238][240][241]
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 domesticlegal theory, some areinterdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the natural law, the Eclectic and the legal positivism schools of thought.[242][page needed]
The natural law approach argues that international norms should be based onaxiomatic truths. The 16th-century natural law writer de Vitoria examined the questions of thejust war, the Spanish authority in the Americas, and the rights of the Native American peoples. In 1625, Grotius argued that nations as well as persons ought to be governed by universal principle based onmorality anddivine justice while the relations among polities ought to be governed by the law of peoples, thejus gentium, established by the consent of the community of nations on the basis of the principle ofpacta sunt servanda, that is, on the basis of the observance of commitments. On his part, 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 oreclectic 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.[citation needed]
The early positivist school emphasized the importance of custom and treaties as sources of international law. In the 16th-century, Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, whileJohn 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, favouringrationality overmorality andethics. The 1815Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.[citation needed] 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" reality that needs to be distinguished from law "as it should be". Classic positivism demands rigorous tests for legalvalidity and it deems irrelevant all extralegal arguments.[243]
John Austin asserted that due to the principle ofpar in parem non habet imperium, "so-called" international law, lacking a sovereign power and so unenforceable, was not really law at all, but "positive morality", consisting of "opinions and sentiments...more ethical than legal in nature."[244] Since states are few in number, diverse and atypical in character, unindictable, lack a centralised sovereign power, and their agreements unpoliced and decentralised,Martin Wight argued that international society is better described as anarchy.[245]
Hans Morgenthau believed international law to be the weakest and most primitive system of law enforcement; he likened its decentralised nature to the law that prevails in preliterate tribal societies.Monopoly on violence is what makes domestic law enforceable; but between nations, there are multiple competing sources of force. The confusion created by treaty laws, which resemble private contracts between persons, is mitigated only by the relatively small number of states.[246] He asserted that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary. International law is also unpoliced, lacking agencies for enforcement. He cites a 1947 US opinion poll in which 75% of respondents wanted "an international police to maintain world peace", but only 13% wanted that force to exceed the US armed forces. Later surveys have produced similar contradictory results.[247]
International law is currently navigating a complex array of challenges and controversies that have underscored the dynamic nature of international relations in the 21st century. Some of these challenges include enforcement difficulties, the impact of technological advancements, climate change, and worldwide pandemics.[248] The possible re-emergence ofright of conquest as international law is contentious.[249]
Among the most pressing issues are enforcement difficulties, where the lack of a centralized global authority often leads to non-compliance with international norms, particularly evident in violations of International Humanitarian Law (IHL). Sovereignty disputes further complicate the international legal landscape, as conflicts over territorial claims and jurisdictional boundaries arise, challenging the principles of non-interference and peaceful resolution. Furthermore, the emergence of new global powers introduces additional layers of complexity, as these nations assert their interests and challenge established norms, necessitating a reevaluation of the global legal order to accommodate shifting power dynamics.[250]
Cybersecurity has also emerged as a critical concern, with international law striving to address the threats posed by cyber-attacks to national security, infrastructure, and individual privacy. Climate change demands unprecedented international cooperation, as evidenced by agreements like the Paris Agreement, though disparities in responsibilities among nations pose significant challenges to collective action.[251]
The COVID-19 pandemic has further highlighted the interconnectedness of the global community, emphasizing the need for coordinated efforts to manage health crises, vaccine distribution, and economic recovery.[252]
These contemporary issues underscore the need for ongoing adaptation and cooperation within the framework of international law to address the multifaceted challenges of the modern world, ensuring a just, peaceful, and sustainable global order.
^von Stein, Jana (2012), Dunoff, Jeffrey L.; Pollack, Mark A. (eds.),"The Engines of Compliance",Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, Cambridge University Press, pp. 477–501,ISBN978-1-107-02074-0
%2c_naast_hem_de_vice-pre%2c_Bestanddeelnr_930-5783.jpg)
.png)
