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International Law and Treaties
International Law and Treaties Mark W Janis, University of Connecticut, Hartford, CT, USA; and University of Oxford, Oxford, UK Ó 2015 Elsevier Ltd. All rights reserved.
Abstract International law is the law generated by more than one state to regulate the international transactions of both states and private parties. It includes rules drawn from treaties, customary international law, general principles of law, natural law, and equity. It is applied in international diplomacy, international courts and arbitrations, and domestic courts and arbitral tribunals. Its fields include the laws of war and peace, the law of the sea, the laws of diplomatic practice, the law of treaties, the law of recognition and succession of states and governments, international trade and commerce, international human rights law, the law of international organizations, international environmental law, international business law, and international criminal law.
For thousands of years what we now call international law and treaties have provided legal rules and processes, generally generated by more than one state, to regulate the international transactions of both states and private parties. Modern international law and treaties are grounded in the Roman jus gentium as transformed by seventeenth-century Dutch theorist Hugo Grotius, who argued that the law of nations consisted both of positive law (in the explicit form of international agreement and the implicit form of international custom) and of natural law as drawn from reason, religion, and necessity. The field of international law and treaties is vast and growing. It includes traditional topics such as the laws of war, the law of the sea, the law of ambassadors and diplomacy, the law of treaties, the law of recognition and succession of states, and the law of trade and merchants. New topics include the law of international organizations, international human rights law, international business law, international tax law, international environmental law, and international criminal law. International legal rules are enforced not only by international courts and arbitration, but by domestic courts, and in diplomatic practice.
Definition International law and treaties is a term that in English has at least three modern meanings: (1) legal rules and legal processes generated by more than one state; (2) legal rules and legal processes that concern interstate relations; and (3) legal rules and legal processes that regulate the international transactions of states and private parties.
Nature and History Traces of what we now term international law and treaties are as old as written history. Evidence of compacts between states and rulers of states dates back at least 4000 years; they chronicle agreements about, inter alia, war and peace, foreign merchants, and ambassadors, all still lively topics of the discipline. It is safe to say that international law and treaties figure as necessary features of human society, regardless of any juristic definition, description, or argument.
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 12
The modern intellectual tradition relating to international law and treaties owes much to Roman law. The Roman term jus gentium, the law of nations, described legal rules pertaining generally to foreigners when specific foreign rules were unknown or in conflict. These were rules thought to be so basic that they were shared by all nations. Hence, like natural law, the law of nations was presumed to exist without positive expression in formal legislation. In Roman law, jus gentium ordinarily was employed in legal matters concerning private transactions, such as marriage, wills, and commerce. Despite its origins in Roman private law, the law of nations was adopted by European jurists in early modern times to describe certain public legal relations. For example, in the sixteenth century, Spanish writers such as Suarez and Vitoria employed principles of jus gentium to argue that the Spanish Crown owed legal duties of basic humanitarian conduct to all peoples, even the indigenous peoples conquered by Spain in the Americas. The often alleged ‘father’ of international law is Hugo Grotius (1583–1645), a Dutch jurist exiled to Paris following the suppression of the liberal party in the Netherlands. Already an accomplished diplomat, jurist, and theologian, Grotius devoted the remainder of his life to the cause of peace. In the midst of Europe’s disastrous 30 Years War (1618–48), Grotius published the law of nations’ most famous book, De Jure Belli Ac Pacis, to demonstrate that legal rules and processes defined and limited the sovereign rights and aggressions of otherwise bitterly divided Catholic and Protestant states and that such legal rules and processes even applied to relations between Christian and non-Christian states. Grotius elaborated a legal theory that still serves as the foundation of modern international law. He argued that sovereign states were defined and bound by two kinds of legal rules drawn from the law of nations: positive law and natural law. The positive law of nations, expressed in treaties and custom, was made by the explicit and implicit agreement of sovereign states. The natural law of nations, expressed in the natural laws of reason and religion, was the result of necessary rules binding everyone, even rulers of states. The first part of Grotius’ theory of jus gentium was quickly married to emerging seventeenth-century political theory, like that of Hobbes, positing the idea of sovereign states. Grotius’
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consensual theory of the law of nations helps explain why treaties, such as the Peace of Westphalia that terminated the 30 Years War in 1648, are legally binding: sovereign states have authority both to legislate rules internally for their own territory and to make rules externally for themselves through interstate agreement. Grotius’ legal theory also explains why sovereign states should not interfere in the internal affairs of other sovereign states: a nation’s sovereign authority must be limited so that the sovereign authority of other states is protected. Such international legal principles that weave sovereign states together and protect them from each other continue to guide international relations today. In his age, Grotius’ jus gentium excited many rulers, including Gustavus Adolphus of Sweden (who is said to have used Grotius’ book as a pillow while campaigning on his many wars), as well as many universities. In Germany, The Netherlands, and England, professorial chairs in the new discipline of the law of nations were created, commencing an outpouring of scholarly works further describing and developing the discipline. Not all students, of course, were pleased by their professors; one of the earliest pupils of the noted English law professor, William Blackstone, rebelled against what he was taught about the law of nations. In 1789, Jeremy Bentham (1748–1832) rejected the term the law of nations as professed by Blackstone; Bentham argued in An Introduction to the Principles of Morals and Legislation that the discipline should be renamed international law. Bentham’s invented word, international, successfully passed from international law to denominate many other disciplines, for example, international relations, international politics, and international economics. More or less inadvertently, Bentham changed not only a term but the very definition of the discipline. Grotius’ and Blackstone’s classical definition of the law of nations focuses on legal rules and processes generated by more than one state. Bentham’s definition of international law, however, focuses on the subjects of the discipline; these Bentham said were states and states alone. The classic jus gentium regards individuals, as well as states, as its subjects, possessing legal rights and duties and accessing legal process. For the sake of theory, Bentham rejected individuals as proper subjects of international law. A third definition of the discipline, along with a new term to describe it, was provided by the US jurist Philip Jessup, who in 1956 proposed replacing both the term the law of nations and the term international law with a new term, transnational law. Jessup defined the discipline of transnational law as encompassing any legal rule or process, municipal or international, that has to do with international transactions of any state, entity, or individual. It may or may not make a difference how one defines the discipline. For example, a rule about delimitation of the continental shelf not only emerges from a multistate source, a treaty, à la Grotius’ law of nations, but it also relates to interstate relations à la Bentham’s international law, and deals with international transactions à la Jessup’s transnational law. Hence, such a rule easily fits within the discipline as described by all three definitions. However, other times the different definitions lead to conflict. For example, if one believes, along with Bentham, that only states may be subjects of international law, then one cannot believe that individuals have international
legal rights and duties. This means that they cannot be protected by international human rights law against abusive state action or be subject to international criminal law. A contrary position is usually taken by those who subscribe to the ordinary definitions of the law of nations and transnational law. Nowadays in practice, although the term international law is very popular, some of its exclusivities have been softened both by the classical tradition of the law of nations and by the modern sentiment expressed in transnational law.
Domain The domain of international law and treaties is vast and growing. The discipline’s classical fields, many hundreds of years old, include the laws of war (both about going to war, jus ad bellum, and about the proper conduct of war, jus in bello), the law of the sea, the law of ambassadors and diplomacy, the law of treaties (how treaties are made, interpreted, and implemented), the law of the recognition and succession of states, and the law of merchants (traditionally, lex mercatoria was part of the law of nations). More recently, new fields in the discipline have emerged, including the law of international organizations and institutions, international human rights law, international trade law, international financial law, the international law of Antarctica, the law of outer space, international environmental law, international refugee and immigration law, international criminal law, the law of international arbitration, international tax law, and the international law of state responsibility. The proliferation of fields in the discipline of international law is due in large measure to the increasing numbers and kinds of international relationships among states, peoples, corporations, and institutions, as well as to the inability of national law and regulation to adequately cope with such international transactions.
The Legislative and Enforcement Questions of International Law To comprehend the fundamentals of modern international law, it is important to understand that two questions have always beset the discipline. First, how is it possible to authoritatively generate international legal rules? And second how is it possible to realistically enforce international law? In short, without an effective international political system, it seems at first glance that there is neither an authoritative way to make international law nor a realistic process to enforce it. These questions are answered in practice by remarkably effective systems of international legal rules and international legal process.
International Legal Rules How are international legal rules authoritatively made? International lawyers often turn to Article 38 of the Statute of the International Court of Justice (the ‘ICJ’) to help describe the formation of international legal rules. Article 38 sets forth the rules available to the ICJ, the court of the United Nations, in deciding cases before it, albeit there are other kinds of
International Law and Treaties
international legal rules as well. The three principal sorts of international legal rules available to the ICJ are rules drawn from explicit international agreements (mostly treaties), rules drawn from international custom, and rules drawn from general principles of law. These are sometimes described as formal sources of international law in that they are the sorts of rule-making that are acceptable in form as legitimate in international law (cf the material sources of international law which are the evidences that show the substance of a specific rule). Rules drawn from international agreements include international legal rules set out in treaties, compacts, conventions, protocols, or whatever may be a written agreement between or among states governed by international law. Nowadays, there are tens of thousands of such instruments; their norms constitute the greatest number of international legal rules. These explicit international rules are comparable not only to statutes in municipal law (in that they establish rules for general conduct), but to domestic contracts (in that they can make ad hoc agreements based on party consent) and to constitutions (in that they can constitute international organizations). They can also be more or less aspirational. Treaty rules are the international legal rules that tend to be both least ambiguous and most clearly based on state consent. All other kinds of international legal rules are more troubled by problems both of ambiguity and of authority. A second type of international legal rule is customary international law. Ordinarily, customary international law is perceived as based on the implicit agreement of states and is composed of two elements. First is a consistent pattern of state practice; this defines the rule. Second is a belief, an opinio juris, that compliant state behavior is based on a sense of binding legal obligation. In practice, the determination of a consistent pattern of state practice is almost always controversial and involves a subjective weighing of evidences from state practice proving and disproving the rule. Opinio juris is even more controversial: states rarely indicate that they are behaving in international relations in a certain way because they feel compelled to do so by a sense of international legal obligation. Rather, opinio juris is usually an evaluation added by a judge or a commentator as a description of state practice. The third kind of legal rule prescribed by Article 38 of the ICJ Statute is general principles of law. These are legal principles generally shared by most or all legal systems. This concept is rather similar to the original Roman notion of jus gentium, that is, rules so basic that they are to be found everywhere. In modern practice, general principles of law are usually developed by jurists through a comparative law search. The method proceeds by examining diverse municipal legal systems. If a rule is found to be common to most or all of the municipal legal systems examined, then the rule is also presumed to exist as a general principle of law in international law. Of the three formal sources of international law provided for in the ICJ Statute, treaty and custom are, more or less, consensual in nature. Even general principles of law can be seen to have a consensual aspect since it can be argued that if states already recognize a legal rule internally, they may be presumed to accept that self-same rule externally. Beyond the ICJ Statute, however, other formal sources of international legal rules exist without displaying such real or alleged consensual foundations.
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Such nonconsensual rules may be seen as being no longer in the camp of positive law, but belonging to that of natural law. Indeed, natural law itself has long been an important formal source of international law. However, the term natural law, once so common, is nowadays rarely used in discussions of international law. Instead, newer equivalent terms have emerged. Key among these are jus cogens and fundamental norm, both expressing the natural law idea that some legal rules are so fundamental that they can be found everywhere and the idea that they trump any conflicting rule of positive law. Jus cogens or fundamental norms are often thought to include both the basic principles underpinning the international system, for example, pacta sunt servanda (agreements are binding) and the very notion of ‘sovereignty,’ as well as those basic principles protecting key human rights, for example, legal norms protecting individuals against genocide, slavery, and torture. Another nonconsensual form of international law is equity. Sometimes viewed as a corrective of the strict application of a legal rule (equity contra legem), equity can also involve rule creation (equity praeter legem) and rule interpretation (equity infra legem). Equitable rules or principles can be based on nonlegal criteria, such as distributive justice and basic notions of fairness.
International Legal Process How are international legal rules enforced in practice? Most times when international legal rules are recognized, they are applied by the nation states themselves. So, for example, all kinds of international legal rules, whether they be drawn from treaties, custom, general principles of law, jus cogens, or equity, are applied from time to time by municipal courts. Approaches to this process usually are thought to be either dualistic or monistic. Dualism, the prevalent view, holds that municipal legal systems and international legal systems are distinct from each other (dualist) and that there need to be rules of incorporation providing why, when, and how a rule of international law is to be applied by a municipal court. Monism, the less usual view, sees both international law and municipal law as parts of a unified system of law, where incorporation of international legal rules into municipal law is to be presumed. Different municipal legal systems have different answers to questions of the incorporation of international law. Moreover, a municipal legal system’s rules about incorporation may vary depending on the type of international legal rule concerned. So, for example, though treaty rules are sometimes deemed to be self-executing in the United States, that is, requiring no domestic legislation to put them into internal effect, in Great Britain treaty rules are never self-executing: all require an act of Parliament before they can be employed as rules of decisions by municipal courts. However, respecting customary international law, the United States and Great Britain share a similar approach. Both municipal legal systems deem some sorts of customary international law to be part of the law of the land, available to municipal courts without legislative act. Besides providing rules of decision for municipal courts which then enforce the international rules alongside municipal law, international law is also enforced by procedures in the international legal system. There are, for example, an increasing
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number of international courts. Oldest among these is the International Court of Justice at The Hague, which dates its antecedents to the Permanent Court of Arbitration established by The Hague Peace Conference of 1899, and to the Permanent Court of International Justice, established under the auspices of the League of Nations in 1921. The International Court of Justice was established alongside the United Nations, its parent institution, in 1945. The Court is composed of 15 judges elected by the UN General Assembly. There are usually ICJ judges from China, France, Russia, the United Kingdom, and the United States. Reference has already been made to the ICJ Statute, the treaty that authorized the creation of the Court. The ICJ Statute also provides for two kinds of jurisdiction for the Court. First is its contentious jurisdiction; here the Court, with the prior consent of the parties to the dispute, actually decides cases between states. However, neither international organizations nor individuals may be party to the ICJ’s contentious jurisdiction. The second sort of ICJ jurisdiction is its advisory jurisdiction: at the request of some international organizations (though neither states nor individuals), the ICJ may render a legally nonbinding advisory opinion on a legal matter. Since 1921, the practice of the Permanent Court of International Justice and the International Court of Justice has remained roughly steady: about three or four judgments or advisory opinions rendered each year. Since 1950, a great many new international courts have been created. Each of these courts is limited either geographically or by its subject matter, but some have become a great deal busier than the older and more universal ICJ. Europe’s two regional courts – the European Court of Human Rights in Strasbourg (established by the European Convention of Human Rights in 1953 and comprising 47 member countries) and the European Court of Justice in Luxembourg (the highest court of the European Union) – nowadays decide hundreds of cases each year. Less busy but still important are international courts and international dispute-settlement procedures such as the Law of the Sea Tribunal in Hamburg, the World Bank’s International Center for the Settlement of Investment Disputes in Washington, the Inter-American Court of Human Rights in Costa Rica, the World Trade Organizations’ dispute-settlement procedures in Geneva, the international criminal tribunals for the former Yugoslavia in The Hague and for Rwanda in Kenya, and the International Criminal Court in The Hague. Unlike the states-only provisions limiting the ICJ, all these newer international tribunals permit individuals in some circumstances to be parties to litigation. In addition to the increasing number of international courts, there are a great many international arbitral procedures available to provide ad hoc jurisdiction to settle international legal disputes, public and private. Many of these international arbitrations are organized under the auspices of one of the international arbitral institutes. Two of the busiest are the
International Chamber of Commerce in Paris and the American Arbitration Association in New York. Finally, international law is often enforced simply by the diplomatic practice of governments. Reciprocity and good faith, outside any formal dispute settlement procedures, account for the lion’s share of cases in which international law is effectively employed. It would be difficult for much of the world’s business, public and private, to get done unless governments followed similar practices set out in treaties, custom, and the other kinds of international law.
Prognosis It is likely that international law and treaties, already employing tens of thousands of international lawyers worldwide, will continue to prosper and expand. Modern trade, communications, and transportation have all been globalized much more thoroughly than modern politics, which remains largely statecentered. It is likely that without a political or social impetus for internationalization of political decision making, the sovereign state will remain the principal vehicle of government. Accordingly, international law and treaties will shoulder the burden of harmonizing and facilitating the growing number of transactions among the world’s nations.
See also: International Arbitration; International Business; International Trade: Commercial Policy and Trade Negotiations; Lex Mercatoria; Public Goods: International.
Bibliography Bentham, J., 1970. In: Burns, J.H., Hart, H.L.A. (Eds.), An Introduction to the Principles of Morals and Legislation. Athena Press, London. Brierly, J.L., 1949. The Law of Nations, fourth ed. Oxford University Press, Oxford, UK. Brownlie, I., 2008. Principles of Public International Law, seventh ed. Oxford University Press, Oxford, UK. Franck, T.M., 1990. The Power of Legitimacy Among Nations. Oxford University Press, Oxford, UK. Grotius, H., 1925. In: Scott, J.B. (Ed.), The Law of War and Peace. Carnegie Endowment for International Peace, Washington, DC. Higgins, R., 1994. Problems & Process: International Law and How We Use It. Oxford University Press, Oxford, UK. Janis, M.W., 2010. America and the Law of Nations 1776–1939. Oxford University Press, Oxford/New York. Janis, M.W., 2012. International Law, sixth ed. Aspen, New York. Janis, M.W., Noyes, J.E., 2011. International Law Cases and Commentary, fourth ed. West, St Paul, MN. Jennings, R., Watts, A., 1992. Oppenheim’s International Law, ninth ed. Longman, Harlow, UK. Jessup, P.C., 1956. Transnational Law. Yale University Press, New Haven. McNair, A.D., 1938. The Law of Treaties. Columbia University Press, New York. Rousseau, C., 1970. Droit International Public. Sirey, Paris. Wheaton, H., 1836. Elements of International Law. Carey, Lea & Blanchard, Philadelphia, PA.
Abstract International law is the law generated by more than one state to regulate the international transactions of both states and private parties. It includes rules drawn from treaties, customary international law, general principles of law, natural law, and equity. It is applied in international diplomacy, international courts and arbitrations, and domestic courts and arbitral tribunals. Its fields include the laws of war and peace, the law of the sea, the laws of diplomatic practice, the law of treaties, the law of recognition and succession of states and governments, international trade and commerce, international human rights law, the law of international organizations, international environmental law, international business law, and international criminal law.
For thousands of years what we now call international law and treaties have provided legal rules and processes, generally generated by more than one state, to regulate the international transactions of both states and private parties. Modern international law and treaties are grounded in the Roman jus gentium as transformed by seventeenth-century Dutch theorist Hugo Grotius, who argued that the law of nations consisted both of positive law (in the explicit form of international agreement and the implicit form of international custom) and of natural law as drawn from reason, religion, and necessity. The field of international law and treaties is vast and growing. It includes traditional topics such as the laws of war, the law of the sea, the law of ambassadors and diplomacy, the law of treaties, the law of recognition and succession of states, and the law of trade and merchants. New topics include the law of international organizations, international human rights law, international business law, international tax law, international environmental law, and international criminal law. International legal rules are enforced not only by international courts and arbitration, but by domestic courts, and in diplomatic practice.
Definition International law and treaties is a term that in English has at least three modern meanings: (1) legal rules and legal processes generated by more than one state; (2) legal rules and legal processes that concern interstate relations; and (3) legal rules and legal processes that regulate the international transactions of states and private parties.
Nature and History Traces of what we now term international law and treaties are as old as written history. Evidence of compacts between states and rulers of states dates back at least 4000 years; they chronicle agreements about, inter alia, war and peace, foreign merchants, and ambassadors, all still lively topics of the discipline. It is safe to say that international law and treaties figure as necessary features of human society, regardless of any juristic definition, description, or argument.
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 12
The modern intellectual tradition relating to international law and treaties owes much to Roman law. The Roman term jus gentium, the law of nations, described legal rules pertaining generally to foreigners when specific foreign rules were unknown or in conflict. These were rules thought to be so basic that they were shared by all nations. Hence, like natural law, the law of nations was presumed to exist without positive expression in formal legislation. In Roman law, jus gentium ordinarily was employed in legal matters concerning private transactions, such as marriage, wills, and commerce. Despite its origins in Roman private law, the law of nations was adopted by European jurists in early modern times to describe certain public legal relations. For example, in the sixteenth century, Spanish writers such as Suarez and Vitoria employed principles of jus gentium to argue that the Spanish Crown owed legal duties of basic humanitarian conduct to all peoples, even the indigenous peoples conquered by Spain in the Americas. The often alleged ‘father’ of international law is Hugo Grotius (1583–1645), a Dutch jurist exiled to Paris following the suppression of the liberal party in the Netherlands. Already an accomplished diplomat, jurist, and theologian, Grotius devoted the remainder of his life to the cause of peace. In the midst of Europe’s disastrous 30 Years War (1618–48), Grotius published the law of nations’ most famous book, De Jure Belli Ac Pacis, to demonstrate that legal rules and processes defined and limited the sovereign rights and aggressions of otherwise bitterly divided Catholic and Protestant states and that such legal rules and processes even applied to relations between Christian and non-Christian states. Grotius elaborated a legal theory that still serves as the foundation of modern international law. He argued that sovereign states were defined and bound by two kinds of legal rules drawn from the law of nations: positive law and natural law. The positive law of nations, expressed in treaties and custom, was made by the explicit and implicit agreement of sovereign states. The natural law of nations, expressed in the natural laws of reason and religion, was the result of necessary rules binding everyone, even rulers of states. The first part of Grotius’ theory of jus gentium was quickly married to emerging seventeenth-century political theory, like that of Hobbes, positing the idea of sovereign states. Grotius’
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consensual theory of the law of nations helps explain why treaties, such as the Peace of Westphalia that terminated the 30 Years War in 1648, are legally binding: sovereign states have authority both to legislate rules internally for their own territory and to make rules externally for themselves through interstate agreement. Grotius’ legal theory also explains why sovereign states should not interfere in the internal affairs of other sovereign states: a nation’s sovereign authority must be limited so that the sovereign authority of other states is protected. Such international legal principles that weave sovereign states together and protect them from each other continue to guide international relations today. In his age, Grotius’ jus gentium excited many rulers, including Gustavus Adolphus of Sweden (who is said to have used Grotius’ book as a pillow while campaigning on his many wars), as well as many universities. In Germany, The Netherlands, and England, professorial chairs in the new discipline of the law of nations were created, commencing an outpouring of scholarly works further describing and developing the discipline. Not all students, of course, were pleased by their professors; one of the earliest pupils of the noted English law professor, William Blackstone, rebelled against what he was taught about the law of nations. In 1789, Jeremy Bentham (1748–1832) rejected the term the law of nations as professed by Blackstone; Bentham argued in An Introduction to the Principles of Morals and Legislation that the discipline should be renamed international law. Bentham’s invented word, international, successfully passed from international law to denominate many other disciplines, for example, international relations, international politics, and international economics. More or less inadvertently, Bentham changed not only a term but the very definition of the discipline. Grotius’ and Blackstone’s classical definition of the law of nations focuses on legal rules and processes generated by more than one state. Bentham’s definition of international law, however, focuses on the subjects of the discipline; these Bentham said were states and states alone. The classic jus gentium regards individuals, as well as states, as its subjects, possessing legal rights and duties and accessing legal process. For the sake of theory, Bentham rejected individuals as proper subjects of international law. A third definition of the discipline, along with a new term to describe it, was provided by the US jurist Philip Jessup, who in 1956 proposed replacing both the term the law of nations and the term international law with a new term, transnational law. Jessup defined the discipline of transnational law as encompassing any legal rule or process, municipal or international, that has to do with international transactions of any state, entity, or individual. It may or may not make a difference how one defines the discipline. For example, a rule about delimitation of the continental shelf not only emerges from a multistate source, a treaty, à la Grotius’ law of nations, but it also relates to interstate relations à la Bentham’s international law, and deals with international transactions à la Jessup’s transnational law. Hence, such a rule easily fits within the discipline as described by all three definitions. However, other times the different definitions lead to conflict. For example, if one believes, along with Bentham, that only states may be subjects of international law, then one cannot believe that individuals have international
legal rights and duties. This means that they cannot be protected by international human rights law against abusive state action or be subject to international criminal law. A contrary position is usually taken by those who subscribe to the ordinary definitions of the law of nations and transnational law. Nowadays in practice, although the term international law is very popular, some of its exclusivities have been softened both by the classical tradition of the law of nations and by the modern sentiment expressed in transnational law.
Domain The domain of international law and treaties is vast and growing. The discipline’s classical fields, many hundreds of years old, include the laws of war (both about going to war, jus ad bellum, and about the proper conduct of war, jus in bello), the law of the sea, the law of ambassadors and diplomacy, the law of treaties (how treaties are made, interpreted, and implemented), the law of the recognition and succession of states, and the law of merchants (traditionally, lex mercatoria was part of the law of nations). More recently, new fields in the discipline have emerged, including the law of international organizations and institutions, international human rights law, international trade law, international financial law, the international law of Antarctica, the law of outer space, international environmental law, international refugee and immigration law, international criminal law, the law of international arbitration, international tax law, and the international law of state responsibility. The proliferation of fields in the discipline of international law is due in large measure to the increasing numbers and kinds of international relationships among states, peoples, corporations, and institutions, as well as to the inability of national law and regulation to adequately cope with such international transactions.
The Legislative and Enforcement Questions of International Law To comprehend the fundamentals of modern international law, it is important to understand that two questions have always beset the discipline. First, how is it possible to authoritatively generate international legal rules? And second how is it possible to realistically enforce international law? In short, without an effective international political system, it seems at first glance that there is neither an authoritative way to make international law nor a realistic process to enforce it. These questions are answered in practice by remarkably effective systems of international legal rules and international legal process.
International Legal Rules How are international legal rules authoritatively made? International lawyers often turn to Article 38 of the Statute of the International Court of Justice (the ‘ICJ’) to help describe the formation of international legal rules. Article 38 sets forth the rules available to the ICJ, the court of the United Nations, in deciding cases before it, albeit there are other kinds of
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international legal rules as well. The three principal sorts of international legal rules available to the ICJ are rules drawn from explicit international agreements (mostly treaties), rules drawn from international custom, and rules drawn from general principles of law. These are sometimes described as formal sources of international law in that they are the sorts of rule-making that are acceptable in form as legitimate in international law (cf the material sources of international law which are the evidences that show the substance of a specific rule). Rules drawn from international agreements include international legal rules set out in treaties, compacts, conventions, protocols, or whatever may be a written agreement between or among states governed by international law. Nowadays, there are tens of thousands of such instruments; their norms constitute the greatest number of international legal rules. These explicit international rules are comparable not only to statutes in municipal law (in that they establish rules for general conduct), but to domestic contracts (in that they can make ad hoc agreements based on party consent) and to constitutions (in that they can constitute international organizations). They can also be more or less aspirational. Treaty rules are the international legal rules that tend to be both least ambiguous and most clearly based on state consent. All other kinds of international legal rules are more troubled by problems both of ambiguity and of authority. A second type of international legal rule is customary international law. Ordinarily, customary international law is perceived as based on the implicit agreement of states and is composed of two elements. First is a consistent pattern of state practice; this defines the rule. Second is a belief, an opinio juris, that compliant state behavior is based on a sense of binding legal obligation. In practice, the determination of a consistent pattern of state practice is almost always controversial and involves a subjective weighing of evidences from state practice proving and disproving the rule. Opinio juris is even more controversial: states rarely indicate that they are behaving in international relations in a certain way because they feel compelled to do so by a sense of international legal obligation. Rather, opinio juris is usually an evaluation added by a judge or a commentator as a description of state practice. The third kind of legal rule prescribed by Article 38 of the ICJ Statute is general principles of law. These are legal principles generally shared by most or all legal systems. This concept is rather similar to the original Roman notion of jus gentium, that is, rules so basic that they are to be found everywhere. In modern practice, general principles of law are usually developed by jurists through a comparative law search. The method proceeds by examining diverse municipal legal systems. If a rule is found to be common to most or all of the municipal legal systems examined, then the rule is also presumed to exist as a general principle of law in international law. Of the three formal sources of international law provided for in the ICJ Statute, treaty and custom are, more or less, consensual in nature. Even general principles of law can be seen to have a consensual aspect since it can be argued that if states already recognize a legal rule internally, they may be presumed to accept that self-same rule externally. Beyond the ICJ Statute, however, other formal sources of international legal rules exist without displaying such real or alleged consensual foundations.
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Such nonconsensual rules may be seen as being no longer in the camp of positive law, but belonging to that of natural law. Indeed, natural law itself has long been an important formal source of international law. However, the term natural law, once so common, is nowadays rarely used in discussions of international law. Instead, newer equivalent terms have emerged. Key among these are jus cogens and fundamental norm, both expressing the natural law idea that some legal rules are so fundamental that they can be found everywhere and the idea that they trump any conflicting rule of positive law. Jus cogens or fundamental norms are often thought to include both the basic principles underpinning the international system, for example, pacta sunt servanda (agreements are binding) and the very notion of ‘sovereignty,’ as well as those basic principles protecting key human rights, for example, legal norms protecting individuals against genocide, slavery, and torture. Another nonconsensual form of international law is equity. Sometimes viewed as a corrective of the strict application of a legal rule (equity contra legem), equity can also involve rule creation (equity praeter legem) and rule interpretation (equity infra legem). Equitable rules or principles can be based on nonlegal criteria, such as distributive justice and basic notions of fairness.
International Legal Process How are international legal rules enforced in practice? Most times when international legal rules are recognized, they are applied by the nation states themselves. So, for example, all kinds of international legal rules, whether they be drawn from treaties, custom, general principles of law, jus cogens, or equity, are applied from time to time by municipal courts. Approaches to this process usually are thought to be either dualistic or monistic. Dualism, the prevalent view, holds that municipal legal systems and international legal systems are distinct from each other (dualist) and that there need to be rules of incorporation providing why, when, and how a rule of international law is to be applied by a municipal court. Monism, the less usual view, sees both international law and municipal law as parts of a unified system of law, where incorporation of international legal rules into municipal law is to be presumed. Different municipal legal systems have different answers to questions of the incorporation of international law. Moreover, a municipal legal system’s rules about incorporation may vary depending on the type of international legal rule concerned. So, for example, though treaty rules are sometimes deemed to be self-executing in the United States, that is, requiring no domestic legislation to put them into internal effect, in Great Britain treaty rules are never self-executing: all require an act of Parliament before they can be employed as rules of decisions by municipal courts. However, respecting customary international law, the United States and Great Britain share a similar approach. Both municipal legal systems deem some sorts of customary international law to be part of the law of the land, available to municipal courts without legislative act. Besides providing rules of decision for municipal courts which then enforce the international rules alongside municipal law, international law is also enforced by procedures in the international legal system. There are, for example, an increasing
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number of international courts. Oldest among these is the International Court of Justice at The Hague, which dates its antecedents to the Permanent Court of Arbitration established by The Hague Peace Conference of 1899, and to the Permanent Court of International Justice, established under the auspices of the League of Nations in 1921. The International Court of Justice was established alongside the United Nations, its parent institution, in 1945. The Court is composed of 15 judges elected by the UN General Assembly. There are usually ICJ judges from China, France, Russia, the United Kingdom, and the United States. Reference has already been made to the ICJ Statute, the treaty that authorized the creation of the Court. The ICJ Statute also provides for two kinds of jurisdiction for the Court. First is its contentious jurisdiction; here the Court, with the prior consent of the parties to the dispute, actually decides cases between states. However, neither international organizations nor individuals may be party to the ICJ’s contentious jurisdiction. The second sort of ICJ jurisdiction is its advisory jurisdiction: at the request of some international organizations (though neither states nor individuals), the ICJ may render a legally nonbinding advisory opinion on a legal matter. Since 1921, the practice of the Permanent Court of International Justice and the International Court of Justice has remained roughly steady: about three or four judgments or advisory opinions rendered each year. Since 1950, a great many new international courts have been created. Each of these courts is limited either geographically or by its subject matter, but some have become a great deal busier than the older and more universal ICJ. Europe’s two regional courts – the European Court of Human Rights in Strasbourg (established by the European Convention of Human Rights in 1953 and comprising 47 member countries) and the European Court of Justice in Luxembourg (the highest court of the European Union) – nowadays decide hundreds of cases each year. Less busy but still important are international courts and international dispute-settlement procedures such as the Law of the Sea Tribunal in Hamburg, the World Bank’s International Center for the Settlement of Investment Disputes in Washington, the Inter-American Court of Human Rights in Costa Rica, the World Trade Organizations’ dispute-settlement procedures in Geneva, the international criminal tribunals for the former Yugoslavia in The Hague and for Rwanda in Kenya, and the International Criminal Court in The Hague. Unlike the states-only provisions limiting the ICJ, all these newer international tribunals permit individuals in some circumstances to be parties to litigation. In addition to the increasing number of international courts, there are a great many international arbitral procedures available to provide ad hoc jurisdiction to settle international legal disputes, public and private. Many of these international arbitrations are organized under the auspices of one of the international arbitral institutes. Two of the busiest are the
International Chamber of Commerce in Paris and the American Arbitration Association in New York. Finally, international law is often enforced simply by the diplomatic practice of governments. Reciprocity and good faith, outside any formal dispute settlement procedures, account for the lion’s share of cases in which international law is effectively employed. It would be difficult for much of the world’s business, public and private, to get done unless governments followed similar practices set out in treaties, custom, and the other kinds of international law.
Prognosis It is likely that international law and treaties, already employing tens of thousands of international lawyers worldwide, will continue to prosper and expand. Modern trade, communications, and transportation have all been globalized much more thoroughly than modern politics, which remains largely statecentered. It is likely that without a political or social impetus for internationalization of political decision making, the sovereign state will remain the principal vehicle of government. Accordingly, international law and treaties will shoulder the burden of harmonizing and facilitating the growing number of transactions among the world’s nations.
See also: International Arbitration; International Business; International Trade: Commercial Policy and Trade Negotiations; Lex Mercatoria; Public Goods: International.
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