Basic Understanding Of International Law

Definition of International Law

International Law consists of the rules and principles of general application dealing with the conduct of states and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies.

The domain of International Law covers issues of international concern, including the rights and duties of states, how states interact, international organizations, how armed conflicts are regulated, human rights, international criminal law, international trade, and more.

At its core, International Law provides a framework of rules and norms that govern the interactions between states, international organizations, and other actors on the global stage. It establishes expectations for how states should behave and provides mechanisms for holding them accountable. International Law aims to facilitate cooperation, resolve disputes peacefully, and create a more just and equitable international system.

The rules and principles of International Law derive from both customs and treaties that states expressly consent to. It is a unique legal system as there is no global legislature to enact laws or central government to enforce them. Despite this decentralized nature, International Law plays a vital role in promoting order in international affairs.

Areas of International Law

International Law concerns relationships between individual countries and other entities, such as international organizations. Key issues addressed by International Law include:

• Laws of war and international humanitarian law, including the conduct of war, protection of civilians, treatment of prisoners of war, and war crimes. This governs armed conflicts between states.
• Territorial issues, such as laws around statehood, boundaries, airspace, waters, and outer space. This determines rights of control over territory.
• Treaties and alliances between states. This covers the creation, interpretation, and termination of treaties.
• Environmental regulations around issues like pollution, climate change, and conservation. This aims to protect the global environment.
• Trade relations, finance, and investment between states. This facilitates economic relations and commerce.
• Human rights laws concerning global civil, political, economic, social and cultural rights. This upholds human dignity.
• Laws around diplomatic relations like immunity and privileges. This enables diplomacy between states.
• Laws of the sea like navigation rights, economic jurisdictions, and marine environment. This governs the world’s shared oceans.
• International criminal law for prosecution of crimes against humanity. This deters mass atrocities.
• Laws around global communications, transportation and technology. This enables international exchange.

So in summary, International Law deals with matters of concern between states and global actors to enable international cooperation and relations.

Development of International Law

International law has evolved over many centuries from early forms of relations between peoples and states to the complex system of laws that exist today. Some key developments include:

Early Origins

Rules governing relations between peoples and primitive legal systems date back thousands of years to ancient Mesopotamia, Egypt, India and China. Early examples include peace treaties, trade agreements, agreements on the treatment of diplomats, and the laws of war.

The Middle Ages and the Renaissance

Feudal structures in Europe gave rise to many bilateral business and military arrangements during the Middle Ages. The Renaissance period saw greater focus on sovereignty of states rather than authority derived from the Church. Thinkers like Machiavelli emphasized power politics in dealing with other states.

Modern International Law

The Peace of Westphalia in 1648 is considered a turning point, establishing the concept of territorial sovereignty of nation-states. This paved the way for modern international law to develop based on sovereign equality of states. New areas like maritime law, laws of the sea, and laws of war evolved.

The 19th Century

The 19th century saw exponential growth in treaties, multilateral conventions and international organizations, covering issues like slavery, trade, communications, transportation, and humanitarian law. International arbitration also became common during this period. The First Hague Peace Conference in 1899 represented a major multilateral effort to codify laws of war and disarmament.

International Law and International Relations: Two separate disciplines?

International Law (IL) and International Relations (IR) are related but distinct academic disciplines. While IL sets out the legal rules governing international affairs, IR looks at why states and other actors follow or violate these rules.

International Law

• Sets out the binding legal rules and norms for state conduct and international relations. These include rules contained in treaties, customary international law, and general principles.
• Provides the legal justifications and guidelines for state action. For example, the UN Charter outlines when the use of force is permitted.
• Evaluates the legality of state actions. It determines whether actions like the use of force, secession attempts, or border disputes comply with international law.

International Relations

• Examines why states choose to follow or ignore international legal rules in practice. IR looks at the relevance and influence of law on state decisions.
• Analyzes the political consequences of complying or not complying with legal norms. For example, how a violation affects credibility or relations with other states.
• Studies how power dynamics, national interests, and non-legal factors shape state conduct alongside law. IR explains why legal rules are effective or ineffective in regulating state behavior in different issue areas.

While IL defines the legal playing field, IR explores how the game is actually played. The two fields complement each other, with IR providing context for interpreting and applying legal rules. Studying their interplay is key for fully understanding global affairs.

Why Study International Law?

There are several key reasons why international relations scholars and practitioners should study international law:

To Develop Views within International Relations Theory

Studying international law can help international relations scholars and policymakers develop more nuanced theoretical views within the key IR theories of realism, liberalism, constructivism and others. Understanding the role and power of international legal norms can shed light on debates within IR theory.

To Understand the Operation of International Organizations and Institutions

Much of international law today is created and interpreted through institutions like the United Nations, World Trade Organization, and regional organizations. Studying international law helps explain how these organizations work and their role in global affairs.

To Learn About State Practice Over the Years

The roots of international law lie in customary state practice over centuries. Studying the history and development of international law provides insight into how states have behaved and interacted with each other, and how international rules have evolved.

Sources of International Law

International law is derived from various sources as outlined in Article 38(1) of the Statute of the International Court of Justice. The main sources are:

• Customary International Law - International customs that derive from the consistent practice of states done out of a sense of legal obligation. Custom must be extensive and virtually uniform to become a rule of international law.

• Treaties - Binding agreements between states. Treaties can be bilateral between two states or multilateral between multiple states. Treaties become legally binding when ratified by states.

• Judicial Decisions - Rulings and interpretations of international courts, most notably the International Court of Justice (ICJ), are considered sources of international law. ICJ decisions contribute to shaping norms.

• Scholarly Writings - Teachings of eminent scholars and jurists of international law are a subsidiary source. Though not binding, they provide analysis and opinions that often influence state practice and opinio juris.

Customary International Law

Customary international law is one of the primary sources of international law. It refers to international obligations that arise from established state practice, rather than from formal written treaties and conventions. Customary international law comes from the consistent and widespread practice of states, accompanied by a sense of legal obligation (known as opinio juris sive necessitatis).

In order for a practice to become binding as customary international law, it must meet two key criteria:

• State practice - The practice must be general and consistent. That means it must be followed by a significant number of states in their international relations, and nations must follow the custom regularly and uniformly over time.

• Opinio juris - The practice must be accepted as law. States must follow the practice from a sense of legal obligation, rather than courtesy, fairness, or morality. In other words, a state acts in a certain way because it believes it is bound to act that way by international law.

Evidence of customary international law can be found in official government statements, domestic legislation and court decisions, treaties, resolutions adopted by international bodies like the UN General Assembly, and the writings of legal scholars. Custom evolves as state practice changes over time. New customs can develop, but long-established customs are not easily overturned.

Treaties

Treaties are binding agreements between states. They are a primary source of international law and reflect rules expressly recognized as binding by consenting states. Treaties can be bilateral/multilateral and deal with a wide range of issues such as trade, environment, human rights, disarmament, and territorial issues.

The Vienna Convention on the Law of Treaties codifies rules governing treaties. It outlines the process for becoming a party to a treaty,interpretation of treaties, amendments and invalidity. Treaties are binding on parties only and generate rights/obligations between those states. Reservations can be made to treaties unless prohibited and can enable states to opt out of certain provisions.

Treaties can be terminated by consent, material breach, impossibility of performance or fundamental change of circumstances. However, some treaties are intended to be of indefinite duration. Treaties are hierarchically superior to domestic laws. If there is a conflict, the treaty prevails. However, in dualist systems, an act of domestication is required for the treaty to have internal effect.

ICJ Decisions

The International Court of Justice (ICJ) issues binding rulings that interpret and apply international law. As the principal judicial organ of the United Nations, the ICJ helps adjudicate disputes submitted by states and offer advisory opinions on legal issues requested by authorized UN bodies.

The ICJ is composed of 15 judges elected by the UN General Assembly and Security Council. It is housed at the Peace Palace in The Hague, Netherlands. Only states may be parties to contentious cases before the ICJ. Its judgments serve as precedents that contribute to international jurisprudence.

While ICJ decisions legally bind only the states involved in each case, its interpretations of international law carry persuasive authority and influence. The Court’s decisions often clarify aspects of customary international law and the meaning of treaties. By helping resolve disputes peacefully, the ICJ contributes to the development and evolution of international law.