international law(redirected from Sources of international law)
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The body of law that governs the legal relations between or among states or nations.
To qualify as a subject under the traditional definition of international law, a state had to be sovereign: It needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjects of international law, because they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under international law.
A more contemporary definition expands the traditional notions of international law to confer rights and obligations on intergovernmental international organizations and even on individuals. The United Nations, for example, is an international organization that has the capacity to engage in treaty relations governed by and binding under international law with states and other international organizations. Individual responsibility under international law is particularly significant in the context of prosecuting war criminals and the development of international Human Rights.
Sources of International Law
The International Court of Justice (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the League of Nations (the precursor to the United Nations). The PICJ ceased to function during World War II and was officially dissolved in 1946. The ICJ is a permanent international court located in the Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office.
The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court's statute, for mere adherence to the statute does not imply consent to its tribunals. In addition, the court does not have jurisdiction over disputes between individuals or entities that are not states (I.C.J. Stat. art. 34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1)).
Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law.
Custom Customary international law is defined as a general Practice of Law under article 38(1)(b). States follow such a practice out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered rules of international law. Thus, the mere fact that a custom is widely followed does not make it a rule of international law. States also must view it as obligatory to follow the custom, and they must not believe that they are free to depart from it whenever they choose, or to observe it only as a matter of courtesy or moral obligation. This requirement is referred to as opinio juris.
Some criticism against customary international law is directed at its subjective character and its inconsistency. States vary greatly in their opinions and interpretations of issues regarding international law. Thus, it is almost impossible to find enough consistency among states to draw a customary international rule from general practice. In addition, even if one state or judge finds that a practice is a rule of customary international law, another decision maker might reach a different conclusion. Altogether, the process of establishing rules of customary international law is lengthy and impeded by today's fast-changing world.Conventions and Treaties Conventional international law includes international agreements and legislative treaties that establish rules expressly recognized by consenting states. Only states that are parties to a treaty are bound by it. However, a very large number of states voluntarily adhere to treaties and accept their provisions as law, even without becoming parties to them. The most important treaties in this regard are the Genocide Convention, the Vienna conventions, and the provisions of the UN Charter.
UN Charter and United Nations
The UN Charter and the United Nations as an organization were established on October 26, 1945. The UN Charter is a multilateral treaty that serves as the organization's constitution. The UN Charter contains a supremacy clause that makes it the highest authority of international law. The clause states that the UN Charter shall prevail in the event of a conflict between the obligations of the members of the United Nations under the present charter and their obligations under any other international agreement (art. 103).
At its formation, the United Nations had 51 member states. Its membership had increased to 180 states in 1996, including almost all of the world's independent nations. The United Nations is designed to serve a multitude of purposes and is charged with a variety of responsibilities. Among these are peacekeeping; developing friendly relations among nations; achieving international cooperation in solving international problems of an economic, social, cultural, and humanitarian character; and promoting human rights and fundamental freedoms for all human beings without discrimination (UN Charter art. 1).
The United Nations comprises the Trusteeship Council, the General Assembly, the Security Council, the Economic and Social Council, and the ICJ. The Trusteeship Council's role is to supervise the administration of non-self governing territories. Because all of these territories have now gained independence, the last one being Palau in 1993, the Trusteeship Council is no longer functional within the United Nations.
The General Assembly and the Security Council are the components of the organization that are most involved in lawmaking and legislative activities. Their respective authority varies greatly. Although the General Assembly lacks formal legislative authority to adopt resolutions that are binding on its members, it is highly active in the making and development of international law. This organ of the United Nations is required to initiate studies and to make recommendations that encourage the progressive development of international law and its Codification (UN Charter art. 13(1)(a)). Within this context, the General Assembly has originated much of the existing international legislation, and some of its resolutions are now accepted as customary international law, such as the universal declaration of human rights. Thus, resolutions adopted by the General Assembly, albeit formally considered non-binding, have legal character and contribute significantly to the development of international law.
The Security Council, on the other hand, has the authority to adopt binding decisions, and non-compliance with these decisions constitutes a violation of the UN Charter. However, this does not give the Security Council a general lawmaking authority, as its Subject Matter Jurisdiction is limited to concerns of international peace and security. According to the UN Charter, article 2(3), all nations are required to settle their disputes by peaceful means in such a manner that international peace, security, and justice are not endangered. Nations are advised to resort to peaceful dispute-settlement mechanisms (art. 33(1)) such as negotiation, mediation, and conciliation. Where these measures fail, the parties must refer to the UN Security Council if their proposed measure would be a threat to peace and security. The Security Council then makes recommendations on further peaceful measures, and it resorts to the powers conferred on it under the UN Charter for its peacekeeping operations. The General Assembly's role in peacekeeping focuses mainly on providing a forum for public discussion of the issues. However, the assembly does have the power to bring issues that potentially endanger the peace before the Security Council.
In some cases, the Security Council fails to exercise its responsibility for maintaining international peace and security, and there is a threat to peace or an act of aggression. The General Assembly or Security Council may make appropriate recommendations and may authorize the threat of economic sanctions or the use of armed forces to maintain or restore international peace and security.
The UN Peacekeeping Forces are employed by the World Organization and may function either as unarmed observer forces, or armed military forces. Their presence in areas of conflict is intended as an incentive to either prevent or reduce the level of conflict. Both parties to a conflict must accept their presence. As of 2001, the number of UN peacekeeping forces per year was the highest in 1993 and 1994 (more than 70,000 each year, during the crisis in Somalia), then subsided until 2001, when it again approached 48,000 following the crisis in Kosovo.
However, the United Nations generally has not been very effective in preventing hostilities that involve the world's principal powers, either directly or indirectly. For example, in 1993, the second UN peace operation, UNOSOM II, was intended to assist in rebuilding Somalia and in disarming warring factions there. It met with stiff resistance, culminating in the public deaths of 18 U.S. troops serving with the operation. When the United States announced its withdrawal, the entire operation began to wind down, while the war continued unabated. Serious debate broke out within the UN over the scope and mission of peacekeeping functions, resulting in a general disengagement in such efforts. Sadly, even efforts to respond to the genocide in Rwanda subsequently failed.
Another area of intense UN deliberations has been the Middle East. In 1990, the UN Security Council imposed comprehensive economic sanctions against Iraq following its invasion of Kuwait. The efforts failed to deter Iraq's then-leader, Saddam Hussein. The following year, the United States led allied forces to expel Iraqi forces from Kuwait during the 1991 Persian Gulf War. Following that conflict, UN Security Council Resolution 687 required Iraq to destroy its arsenal of nuclear, chemical, and biological weapons, and to submit to UN inspection for compliance.
Over the next several years, despite Iraqi efforts to conceal them, such weapons were indeed found and destroyed by UN inspectors. However, the inspectors left in 1998, following U.S. and U.K. air strikes bent on speeding up the process and destroying concealed weapons. When economic sanctions against Iraq failed to punish anyone but the Iraqi people, the UN began a humanitarian "Oil for Food" program, again with little impact. After 12 years of failed economic sanctions against Iraq, the United States petitioned the UN for international support and a coalition of military forces to oust the Hussein regime. The measure was vetoed by several superpowers, which favored the Continuance of UN inspections. In early 2003, the United States and the United Kingdom, supported by several other smaller powers, conducted military strikes on Iraq and eliminated Saddam Hussein's regime. After the fact, the UN agreed to assist in peacekeeping while a new Iraqi government was organized and instituted.
The UN Charter includes a general provision that concerns the human rights of the individual. On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights, which defines and enumerates specifically the human rights that the United Nations seeks to protect. Among those are freedom from systematic governmental acts and policies involving torture, Slavery, murder, prolonged Arbitrary detention, disappearance, and racial discrimination. The declaration guarantees the right to life; to Equal Protection of the law; to free speech, assembly, and movement; to privacy; to work; to education; to health care; and to participation in the cultural life of the community. Although the Universal Declaration is not a binding instrument of international law, some of its provisions nonetheless have reached the status of customary international law. Under Articles 55 and 56 of the UN Charter, member states have an obligation to promote these rights. At the same time, the declaration acknowledges that states may limit these rights as they deem necessary, to ensure respect for the rights and freedoms of others.
In 1966, the UN General Assembly adopted three covenants that involve human rights: the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Optional Protocol to the Civil and Political Covenant. Unlike the Universal Declaration, these covenants are treaties that require ratification by member states. The United States is not a party to the covenants.
The human rights provisions of the UN Charter, the Universal Declaration of Human Rights, and the covenants constitute the International Bill of Human Rights. Other UN human rights instruments supplement this bill. The most important ones are the Genocide Convention (1948); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Political Rights of Women (1953); and the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). These conventions are legally binding on the parties that have ratified them. Most of the UN member states have ratified at least two: the Genocide Convention and the Racial Convention. The United States has ratified only the Women's Rights Convention and the Genocide Convention.
August, Ray. 1995. Public International Law: Text, Cases, Readings. Englewood Cliffs, N.J.: Prentice-Hall.
Janis, Mark W. 1988. An Introduction to International Law. Boston: Little, Brown.
"Size of UN Peacekeeping Forces: 1947–2001."; "Sanctions Against Iraq"; "Weapons Inspection Program." 2002. Excerpted from Iraq Crisis. Available online at <www.globalpolicy.org/security/peacekpg/data/pcekprs1.htm> (accessed November 20, 2003).
"United Nations Peacekeeping." Available online at <www.una-uk.org/UN&UC/Peacekeeping.html > (accessed November 20, 2003).
Ambassadors and Consuls; Arms Control and Disarmament; General Agreement on Tariffs and Trade; Geneva Conventions, 1949; Genocide; Hague Tribunal; International Court of Justice; Law of Nations; North American Free Trade Agreement; War.
n. there is no specific body of law which governs the interaction of all nations. There are treaties between countries, multi-lateral agreements, some commissions covering particular subjects, such as whaling, or copyrights, procedures and precedents of the International Court of Justice ("World Court") which only has jurisdiction when countries agree to appear, the United Nations Charter, and custom. (See: World Court)