International Law
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International law
is the body of legal rules that apply between sovereign states and such other
entities as have been granted international personality (status acknowledged by
the international community). The term was coined by Jeremy
Bentham and is synonymous with the term "law of nations" and
its equivalents in other languages. |
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Like precepts of international morality,
the rules of international law are of a normative character; that is, they
prescribe standards of conduct. They distinguish themselves, however, from moral
rules by being, at least potentially, designed for authoritative interpretation
by an independent judicial authority and by being capable of enforcement by the
application of external sanctions. |
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International law means public
international law as distinct from private international law or the conflict
of laws, which deals with the differences between the municipal laws of
different countries. |
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International law forms a contrast to
municipal law. While international law applies only between entities that can
claim international personality, municipal law is the internal law of states
that regulates the conduct of individuals and other legal entities within their
jurisdiction. |
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International law should also be
distinguished from quasi-international law, which is the law governing relations
similar to those covered by international law but outside the pale of
international law because at least one of the parties lacks international
personality. Concession agreements between oil companies and sovereign states
fall into this category. In case of doubt, they are subject to the municipal law
of the state granting the concession. |
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Transnational law is a purely negative
term. It is intended to convey that, in accordance with the intention of
contracting parties, a transaction of a consensual character is not or should
not be subject to municipal law. |
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A view of international law in three
complementary perspectives assists in the better understanding of the subject.
The sociological perspective offers an explanation of the social functions
fulfilled by international law. The historical perspective provides insight into
the growth potential of international law. The ethical perspective furnishes a
normative measuring rod by which to test the moral adequacy of any particular
system. |
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Law is primarily an outgrowth of a
specific social environment. In particular, this applies to law in unorganized
international society as well as in specific international societies organized
on the confederate model, such as the League of Nations and the United Nations.
The chief participants--the sovereign states, and especially the strongest among
them--tend to view themselves as ultimate ends and are inclined to insist on
control of the means indispensable for their survival in any crisis, especially
their freedom to arm themselves. They form alliances and counteralliances for
aggressive and defensive purposes, create precarious systems of balance of
power, and pursue policies of involvement or isolation. (see also political
power) |
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In such situations the primary function
of law is to legitimate power; that is, the law assists in maintaining the
supremacy of force and the hierarchies established on the basis of power and
gives to such quasi-orders the respectability and sanctity of law. International
law in unorganized international society serves these purposes in a variety of
ways; for example, one of the cornerstones of international customary law is the
independence of states, which provides for freedom of armament, access to raw
materials and markets, and the admission of immigrants. Similarly, whether a
state decides to participate in an international congress or conference depends
on its own will. Moreover, in the absence of agreement to the contrary,
unanimity is required for any decision reached in the assembly of any such
international gathering. Finally, any binding third-party settlement of a
dispute by reference to law or equity depends on the consent of the parties
concerned. (see also power
politics) |
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By building international customary
law on the foundation of state sovereignty, states make certain of
reserving for themselves the choice between peace and war. Moreover,
international customary law puts at the disposal of its subjects the right to
apply measures short of war by way of reprisal against alleged breaches of
international law. |
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In international confederations, such as
the League of Nations and United
Nations, the rights of sovereign states to threaten or resort to the use
of force are limited by consensual undertakings. Yet, voting procedures
providing for unanimity or reserving veto rights and wide escape clauses (such
as those contained in articles 51 and 107 of the UN Charter) tend to reduce such
peacekeeping systems to relative ineffectiveness, in particular in relation to
the major world powers. |
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In fields less central to the systems of
open power politics or power politics in disguise, international law may also
fulfill the functions of a law of reciprocity
and of a law of coordination. Thus, for example, on the basis of many treaties,
an international customary law of diplomatic immunity, codified in the 1961
Vienna Convention on Diplomatic Relations, has developed. |
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Occasionally, the law of
reciprocity--that is, a set of legal rules, compliance with which rests normally
on the expectation of mutual advantages rather than on the fear of the
application of external sanctions--intrudes even into spheres that are closer to
actual power politics. This is always possible on a consensual basis, as in
peace treaties, and occasionally has happened, as in the various conventions
agreed upon at Lausanne in 1923 that terminated a war between Greece and Turkey.
The laws of war are illustrations from international customary law. They include
legal rules that apply to wars fought for limited purposes where both sides have
exhausted the means of escalation available in systems of power politics but
resist the temptation of total war with no legal restraints. |
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In an unorganized international society
based on entities that tend to put their own interest before the commonweal, the
scope of a law of coordination, or community law, in which the common interest
overrides sectional interests, is limited. An example of this type of law is the
gradual outlawry of the slave trade by bilateral
and multilateral consensual undertakings, especially the Treaty of Paris (1815)
and the Slavery Conventions of 1926 and 1956. |
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Since the dawn of history inchoate
systems of international law have come into existence in many parts of the
world. Though of comparative interest, most have not influenced the evolution of
contemporary international law. Leaving aside the borrowing of some Roman-law
terminology and legal techniques, such continuity as exists in the practice of
international law dates from early medieval international law. (see also medieval
law) |
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International law is the product of a
threefold process initiated in the Western world: the disintegration of the
medieval European community into a European society, the expansion of this
European society, and concentration of power in a developing world society in
the hands of a rapidly declining number of major world powers. |
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The premises of medieval international
law were simple. (1) In the absence of an agreed state of truce or peace, war
was the basic state of international relations even between independent
Christian communities. (2) Unless exceptions were made by means of individual
safe conduct or treaty, rulers saw themselves entitled to treat foreigners at
their absolute discretion. (3) The high seas were no-man's-land, where anyone
might do as he pleased. |
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Treaty
law was the predominant feature of medieval international law. Sanctions varied
from the exchange of hostages, the pledging of towns, castles, and territories,
and the mortgaging of the personal property of kings, or their subjects, to the
appointment of guardians or the addition of the signatures of powerful
dignitaries representing the various estates of a prince's realm. Supernatural
sanctions, such as solemn oaths or excommunications of a guilty party, were also
employed. The observance of treaties and other engagements rested on the same
basis as it did in subsequent phases of international law: self-interest,
especially in relation to obligations of a reciprocal character, and the value
attached by an obligated party to his moral credit and his respect for the
principle of good faith. |
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With the expansion of European society
the spiritual basis of inter-Christian international law was weakened but not
eliminated. In particular, the universalist spirit that imbued the naturalist
doctrine of international law gave to international law the elasticity needed to
adapt itself to a constantly widening international environment. Even so,
international law primarily served the purposes of assisting in the process of
Western expansion. |
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In the process of the transformation of
international law into a world law, international law exchanged its Christian
foundation for that of a law among states that were civilized in a highly formal
sense. Civilization was understood as compliance with the minimum requirements
of the rule of law, as this term, or its continental equivalents, was used in
pre-1914 days in the Western world, especially regarding the treatment of the
persons and property of foreign nationals. It took merely a further step to make
sovereignty the decisive test of full international personality. In the pre-1939
era of the coexistence of democratic communities with totalitarian states such
as the Soviet Union, Fascist Italy, Nazi Germany, and militaristic Japan,
international law had become a law among sovereign states. |
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While the coexistence of sovereign
states in a legal system postulates equality, this equality in international law
is of a purely formal character. For example, since the formation of the United
Nations in 1945, membership has increased threefold. Even though the number of
sovereign and equal states has sharply increased, real influence still rests
with only a handful of nations. The veto power of the permanent members of the
UN Security Council, the weighting of votes according to the financial interest
taken in the International Monetary Fund, and the special position accorded to
states of chief industrial importance (as in the International Labour
Organisation) are indicative of this trend. |
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The development of the doctrine of
international law followed only slowly in the wake of the practice of
international law. In the early days of international law it sufficed to have
lawyers trained in canon and civil law. They tended to apply to novel situations
the concepts of municipal law with which they were familiar. This accounts for
the long-continued overemphasis in the doctrine of international law on
analogies from these familiar systems of internal community law to systems
developed by societies with very different cultural traditions. |
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The beginnings of European international
law and relations are to be found in the microscopic interstate system of the Italian
city-states. Here may be seen the beginnings of the doctrine of international
law, especially in the writings of two Italian lawyers, Bartolo
da Sassoferrato (1314-57) and Baldo degli Ubaldi (1327-1400). When in the
late 15th and 16th centuries Spain became the leading Western power, Francisco
de Vitoria (c. 1486?-1546)
founded the Spanish school of international law. In the 17th century it came to
be rivaled by the Anglo-Dutch school, particularly in the persons of Alberico
Gentili (1552-1608) and Hugo Grotius
(1583-1645). |
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While neither Grotius nor any other
exponent of international law was the "father" of international law,
Grotius' De Jure
Belli ac Pacis (1625; On the
Law of War and Peace) acquired a fame far greater than that of the works of
his predecessors. This was due to a combination of factors that appealed to his
contemporaries and subsequent generations: he stressed the self-defeating
character of war, accepted sovereign states as the basic unit of international
law, and skillfully blended natural law, Roman law, and state practice in a
manner that left in vital matters sufficient discretion to governments to do,
without legal hindrance, what they thought opportune. |
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Samuel von Pufendorf
(1632-94), the German publicist and jurist, espoused the priority of natural law
over positive law. An extreme naturalist school following his lead attempted to
identify international law with natural law. In England, Richard
Zouche (1590-1661) laid the foundations of positivism in international
law, drawing a sharp distinction between the postulates of natural law and
international law as actually supplied in state practice. An eclectic school,
sometimes described as Grotian, tried to find a golden mean between the extremes
of naturalism and positivism by relying on both natural and positive law. Christian
Wolff (1679-1754) and Emerich de Vattel
(1714-67) were two of its early exponents. |
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The one-sidedness and subjectivity of
these techniques led to new departures on inductive, interdisciplinary, and
relativist lines. The essence of the inductive approach is in the ascertainment
of the rules of international law exclusively by means of generally accepted and
rationally verifiable evidence. In particular, this involves recognition that
the principles, as distinct from the rules, of international law are normally
merely abstractions from these rules but do not constitute legitimate
law-creating processes. The interdisciplinary treatment makes it possible to
view international law from an outside perspective provided by sociology,
history, and ethics. Finally, the exploration of the possible forms of the
development of international law in a relativist way makes available, side by
side, various patterns that exist for the solution of any social problem,
providing a detached but constructive approach to problems of international law
in the making. |
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In its own speculative framework, the
naturalist doctrine of international law provided both sociological and ethical
perspectives of the subject. Subsequently, during the reign of positivism, the
consideration of these perspectives was neglected. |
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A less subjective ethical measuring rod
than those applied by naturalist writers is that of civilization itself. Links
between international law and civilization exist not only historically but also
explicitly in one of the three law-creating processes that the International
Court of Justice is charged to apply: the general principles of law recognized
by civilized nations. Civilization in this sense is more than a mature and
rational apparatus of thought and action. It is a continuous process toward, and
away from, community relations; its aim is to develop relations based on
cooperation and fellowship rather than on fear. |
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The relations between international law
and civilization have varied considerably throughout the history of
international law. Ample evidence of this is furnished by state practice
regarding the recognition of new governments, states, or nations; the
large-scale disregard of the minimum standard regarding the treatment of
foreigners; and the ambivalent attitude of states to the legality of weapons of
mass destruction. Thus, the relation between international law and civilization
is tenuous at the best of times, and it is advisable for any ethical evaluation
of contemporary international law to err on the side of caution. |
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Certain basic issues call for
discussion: the law-creating processes of international law; the law-determining
agencies of international law; the relations between international law and
municipal law; and the nature of and the relations between rules, principles,
and standards of international law. |
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These are the forms in which rules of
international law come into existence; i.e.,
treaties, rules of international customary law, and general principles of
law recognized by civilized nations. It is the merit of article 38 of the
Statute of the International Court of Justice that this exclusive list of
primary law-creating processes has received almost universal consent. States
that have assented to, or acquiesced in, resolutions adopted unanimously by the
UN General Assembly and stated to be declaratory of existing international law
may be thought to be prevented in good faith from contesting any longer the
existence of a formerly controversial rule of international law. On a consensual
basis and, thus, in accordance with one of the primary law-creating processes,
this and other secondary law-creating processes can, and have, come into
existence. |
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This is essentially the international
law of unofficial international society, and its rules can be summarized under
the heads of seven fundamental principles. The two constitutive elements of
international customary law are (1) a general practice of states on a universal,
general, or regional basis and (2) the acceptance by the states concerned of
this practice as law. |
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The origin of international customary
law is frequently found in earlier treaty clauses, which subsequently were taken
for granted, as with the rules regarding the minimum standard applicable to
foreign nationals and their property. Occasionally, as in the law of the sea and
the law of armed conflict, individual rules of international law have developed
out of roughly parallel practices of the leading powers. |
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Treaties
and other consensual engagements are legally binding undertakings by which,
without any requirements of form under international customary law, the subjects
of international law may declare, modify, or develop existing international law
as they see fit or agree on transactions; e.g.,
of a territorial character. They are thus able to transform jus
strictum into jus aequum, jus
dispositivum into jus cogens (see
below Jus
dispositivum and jus cogens ), and
vice versa, and unorganized international society into global or regional
international societies on confederate or supranational levels of integration. |
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Such principles must fulfill two
requirements. To qualify under this heading, a legal principle must be a general
principle of law, as distinct from a legal rule of a more limited functional
scope. It must be recognized and shared by a fair number of civilized nations
and probably include representation of at least the principal legal systems. |
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The general principles of law come into
play only as a subsidiary law-creating agency, that is, in the absence of
competing rules of international customary law or treaty law. Their existence in
the background forestalls any argument that supposed gaps in international law
prevent international judicial organs from deciding on the substance of any
dispute submitted to their jurisdiction. |
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These agencies furnish the evidence for
the existence of asserted rules of international law. The totality of the
subjects of international law constitutes the relevant agency for any rules of
universal customary international law. A convincing majority of subjects of
international law provides the requisite evidence for the existence of an
alleged rule of general customary international law. The ensemble of the parties
to a treaty fulfills the same function in relation to any particular consensual
engagement. The body of civilized nations forms the relevant law-determining
agency regarding general principles of law. |
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The decisions of international and
national courts and tribunals plus the doctrine of international law (i.e.,
the teachings of the most highly qualified publicists) constitute what are
described in article 38 of the Statute of the International Court of Justice as
"subsidiary" means for the determination of the rules of international
law. |
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In practice, consensus scarcely ever
exists in any of these law-determining agencies. Thus, it is necessary to
determine the relative evidential value of any pronouncements made by the
elements of law-determining agencies; i.e.,
the views of individual parties to treaties, relevant diplomatic material,
and pertinent decisions of international and national judicial organs. To obtain
as objective as possible an evaluation, it is advisable to subject each case to
a threefold scrutiny: the degree of generic and individual independence of the
element of the law-determining agency concerned, its international outlook, and
its professional attainments. |
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International law applies in the
relations between the subjects of international law. The relations between
subjects and objects, and between objects alone, of international law are
governed by municipal law or quasi-international law. (see also jurisdiction) |
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While international law is a legal
system that actually exists, the term municipal law is an abstraction from the
multitude of legal systems that are internal to the individual subjects of
international law. Thus, actual conflicts can arise only between international
law and individual legal systems other than international law, such as United
States law or German law. How such conflicts are resolved depends on the level
on which they arise. Ultimately, any municipal organ is governed by its own
municipal law and must, if needs be, give priority to it. Similarly,
international organs, such as the International Court of Justice, may have to
give priority to international law and treat municipal law as inferior in an
accepted hierarchy of interlocking legal systems. They may even view
international law as being exclusive of all other law and treat municipal law as
a mere set of facts, which, as the case may be, complies with or contravenes the
international obligations of a subject of international law. |
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The rules of international law are the
legal norms that can be verified as the products of one or more of the three
generally recognized law-creating processes. For purposes of systematic
exposition and legal education, it is also valuable to abstract principles from
legal rules. Such principles of international law provide the common denominator
for a number of related legal rules. They must not be abused by reversing the
procedure for the purpose of deriving from them additional legal rules that
cannot be verified independently by reference to the primary or secondary
law-creating processes of international law. The more fundamental the rules that
underlie any particular principle, the more a justification exists for seeing
the principle itself as fundamental. It is possible to summarize the whole of
international customary law in a number of fundamental principles, and attempts
even have been made to reduce all these rules to a single fundamental principle,
or Grundnorm, such as consent,
recognition, and good faith. |
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By way of treaty, subjects of
international law are free to create additional principles; e.g., those of freedom of commerce or navigation, or a principle
such as that of peaceful coexistence embodied in article 2 of the Charter of the
United Nations. Unless parties desire to give unconditional effect to any such
optional principle, they have at their disposal counterparts to compulsory rules
in the form of optional standards, such as those postulated by most favoured
nation and preferential treatment. |
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In terminology derived from Roman law, a
distinction is made in mature legal systems of municipal law between rules that
may be altered by contracting parties ( jus
dispositivum) and others that may not ( jus
cogens). As distinct from legal systems with a centralized legal order,
around which such jus cogens has
grown, international customary law, as the law of unorganized international
society, does not know of any such peremptory rules. Limitations on the freedom
of states imposed by common sense, self-interest, and other pragmatic
considerations must not be mistaken for jus
cogens. Yet, nothing prevents sovereign states from creating peremptory
international law by way of treaty; e.g., the
seven principles formulated in article 2 of the United Nations Charter. |
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Also derived from Roman law, this
distinction indicates differences between two other types of rule. Rules of jus
strictum (e.g., the rules of international customary law on the right of a
state to request the recall of a foreign envoy as persona non grata) must be
interpreted strictly and literally as embodying absolute rights. Others, such as
those providing for freedom of communication, must be interpreted as rules of jus
aequum; i.e., in a reasonable and equitable manner. |
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The basic rules of international
customary law can be summarized in the following fundamental principles:
sovereignty, recognition, consent, good faith, freedom of the seas,
international responsibility, and self-defense. In this survey are also included
post-1945 codifications of the relevant rules of international customary law. |
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Initially, a subject of international
law is bound only by applicable rules of universal or general international
customary law. Additional international obligations may be imposed on any
subject of international law only with its consent. Unless the territorial
jurisdiction of a state is excluded or limited by rules of international law,
its exercise is exclusively the concern of the state in question. Subjects of
international law may claim potential jurisdiction over persons or things
outside their territorial jurisdiction. In the absence of permissive rules to
the contrary (e.g., the right of hot
pursuit from the territorial sea to the high sea, or the right of reprisal) they
may exercise such jurisdiction only inside their territories. It follows from
the coexistence of sovereign states under international law that, in principle,
they are all equal in status. |
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The rules governing recognition cover
situations such as the co-option of new subjects of international law, the
recognition of territorial claims of another state, the grant and withdrawal of
nationality, and the recognition of the maritime flag of a landlocked state. |
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In principle, recognition is
discretionary, but premature recognition of belligerents and insurgents runs
counter to the exclusive domestic jurisdiction of the other state concerned and
is illegal. The scope and effects of recognition must be ascertained according
to the tenor of the act of recognition and its context. It may be unconditional
or conditional and may be explicit or implied. |
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The devices of protest and reservation
of rights may be used to prevent silence from being misinterpreted as an implied
recognition of a situation or transaction. Notification is a means of bringing a
situation or transaction to the attention of a third power with the intent to
invite recognition or some other reaction. |
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In practice, the chief function of
recognition is to acknowledge the existence of an entity as a subject of
international law with whom another state can maintain diplomatic relations. The
main forms of recognition are recognition of a state or government as exercising
de facto or de jure authority in a territory or, as it is simply called, de
facto and de jure recognition. De facto recognition implies acceptance of the
claim of the recognized government to exercise jurisdiction within its own
territory. De jure recognition, however, usually implies acceptance of the claim
of the recognized government to exercise extraterritorial jurisdiction over, for
example, nationalized companies that own ships entitled to sail under the flag
of the recognized state. |
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Recognition, being a matter of intent,
may fall short of full recognition and be limited to recognition of a group as
belligerents or as insurgents, if such rebels are in de facto control of part of
the territory of another state. |
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Sovereign states are the principal
subjects of international law. Yet nothing prevents states from recognizing
dependent states with limited international personality, such as international
protectorates or the former mandates of the League of Nations. None of the trust
territories of the United Nations has international personality. They are,
however, under the control of the United Nations. Similarly, states are free to
recognize, for all or limited purposes, nontypical subjects, such as the Holy
See, international institutions, and even individual persons as subjects of
international law. In each case, whether any entity has been so recognized is
merely a question of evidence. |
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The rules on consent enable subjects of
international law, when entering into agreement, to modify and to supplement as
they see fit, but without prejudice to the rights of third parties, any of the
rules of international customary law or the general principles of law recognized
by civilized nations. (see also international agreement) |
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Sovereign states have full capacity to
enter into any kind of consensual engagement. The capacity of other entities
with international personality to undertake consensual commitments under
international law is limited according to the scope of their international
personality. In the absence of evidence to the contrary, consensual engagements
between subjects of international law are governed by international law, but
consensual engagements between subjects and objects, or between objects of
international law, are outside the pale of international law. |
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Barring prior obligations to the
contrary, as contained, for example, in an undertaking to negotiate or conclude
another agreement, the entry into consensual engagements is purely optional. |
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International customary law does not
prescribe any particular form for consensual engagements, unless the parties
desire not to create legal obligations. The effect of consent given in
accordance with the requirements of international law is to create legal rights
and duties between the contracting parties. In the absence of any contrary
intention of the parties, the suspension, revision, and termination of
consensual engagements depend on the consent or acquiescence of each of the
contracting parties. |
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Excepting agreements entered into by
international organizations, the subject of the law of treaties is now codified
in the 1969 Vienna Convention on the Law of Treaties. |
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In the early phases of the evolution of
international law, good faith meant, primarily, the absence of bad faith.
Gradually, however, good faith was identified with the requirements of
reasonableness, common sense, and equity. |
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Thus, parties to consensual engagements
and parties responsible for duly communicated unilateral acts, which they intend
to have legal effect, must interpret and execute such engagements in good faith.
If a consensual engagement that is subject to international ratification has
been ratified, good faith regulates also the relations between the parties prior
to final ratification. Barring more specialized provisions, acts committed
contrary to good faith by any international institution, all of which derive
their authority from consensual engagements, are void. Excess of jurisdiction by
an international judicial organ or corruption of judges by one of the parties
falls in this category. Rules of jus aequum must be interpreted as relative rights; that is, their
arbitrary exercise is an abuse of right and a tortious act. In the case of
rights derived from rules of jus strictum,
a harsh exercise of such rights is not illegal but amounts to an unfriendly
act; that is, it is open to retorsion, meaning lawful but unfriendly acts of
retaliation. On the international judicial level the consensual nexus within
which judges and parties operate tends to transform any absolute rights into
relative rights, subject to judicial balancing processes in which considerations
of good faith, common sense, and reasonableness play a prominent part. |
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The inclusion of the rules on the
freedom of the high seas (i.e., those parts of the interlinking chain of oceans that lie
seaward of the territorial sea) among those of a fundamental character would be
justifiable on the ground alone that they apply geographically to two-thirds of
the globe. These rules preclude the appropriation by any individual subject of
international law of any portion of the high seas as distinct from the subsoil
and bed of the sea. The exercise of permitted jurisdiction varies according to
the state of peace, intermediacy between peace and war (status mixtus), or war between the states concerned. Subject to a
number of exceptions, in time of peace a state may exercise jurisdiction only
over ships entitled to fly its own flag. In a state of intermediacy, states are
free, under international customary law, to interfere with one another's
shipping by way of reprisal. In time of war, permissible interference with enemy
and neutral shipping is regulated by the rules of sea warfare and prize law. The
use of the high seas, the airspace above the high seas, and the seabed must be
exercised with reasonable regard for the interests of others. The Conventions of
1954, 1962, and 1969 for the Prevention of Pollution of the Sea by Oil provide a
limited implementation of this rule. Piracy jure
gentium (i.e., illegal acts of violence, detention, or depredation for
private ends committed on the high seas) and slave trading are illegal forms of
the use of the high seas under international customary law. (see also slave
trade) |
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The subject is now largely codified in
the 1958 Geneva Conventions on the High Seas and on Fishing and Conservation of
the Living Resources of the High Seas. |
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The rules governing the principle of
international responsibility complement all other rules of international law.
They transform merely admonitory precepts into legal forms and, in this sense,
may also be described as sanctions of international law. |
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The rules on international
responsibility can be reduced to two propositions: (1) the breach of any
international obligation by the organ of a subject of international law
constitutes an illegal act or international tort,
and (2) the commission of an international tort involves the duty to make
reparation. These are rules of international customary law. Thus, the
obligations they create arise independently of the will of any particular
subject of international law, and they may be modified by consent and
acquiescence. In particular, they can be strengthened by consensual rules that
provide for penalties corresponding to those in municipal criminal law
(sometimes also described as international criminal law) but, actually,
constituting merely internationally postulated rules of municipal law, which may
be waived by acquiescence and nonprosecution of claims (also described as
extinctive prescription). |
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Other rules, such as the powers
exercised by states in relation to pirates, blockade runners, and war criminals,
constitute extraordinary forms of the exercise of national jurisdiction. They
are lawful because the home states of these three groups of individuals may not
in good faith contest the exercise of such jurisdiction. |
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In unorganized international society the
distinction between the lawful and unlawful use of force was accepted in state
practice in situations of status mixtus. In
a state of war any limitations of the right to wage war (jus ad bellum) remained a largely ignored postulate of naturalist
doctrine on the distinction between just (and legal) and unjust (and illegal)
war. The realization of this objective had to await later multilateral treaties,
which, by reference to the test of self-defense, incorporated the distinction
between legal and illegal wars and other use of force. |
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Under international customary law
measures of self-defense may be taken against illegal acts that are attributable
to another subject of international law; against acts of individuals, ships, or
aircraft that disentitle any other subject of international law from the grant
of protection; and against acts of objects of international law that lack a
subject of international law that is entitled to give them diplomatic
protection. |
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The need for self-defense must be
compelling and instant. Measures of self-defense comprise any action, including
hot pursuit from the territorial sea into the high seas, that is necessary to
repel an imminent or present invasion of the rights of a subject of
international law. |
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In cases not covered by the conditions
of lawful self-defense, the threat or use of force under international customary
law may amount to a legitimate form of self-help. If a subject of international
law has committed an international tort and refuses to make reparation, the
other party may resort to acts of retorsion or reprisal. |
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The legal effects of resorting to war
under international customary law are to bring into operation the laws of war
and neutrality (jus in bello). |
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The sphere of freedom of action for
subjects of international law--what, in relation to typical international
persons, may also be termed unlimited state jurisdiction--is governed primarily
by the rules on sovereignty. Limitations of this jurisdiction come about as the
result of the interplay of the rules underlying some of the other fundamental
principles with those on sovereignty. |
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This interaction of rules has brought
about secondary rules and legally determined situations. Five of these are of
especial significance: territory, diplomatic law, and immunity; the protection
of nationals abroad; freedom of commerce and navigation; extradition and asylum;
and succession to international rights and obligations. |
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Owing to the preponderance, in a world
largely appropriated by sovereign states, of territorial over personal
jurisdiction, the rules governing title to territory are of major importance.
There are significant exceptions, however, such as the high seas; Antarctica,
barred from further exclusive appropriation by the 1959 Antarctic Treaty; and
outer space and celestial bodies, excluded under the 1967 Outer Space Treaty.
The rules relating to territory rest, first, on sovereignty: occupation,
addition by natural causes of new land to riverbanks (accretion, accession, or
alluvion), and assumption, under international customary law, of sovereignty
over territories whose state apparatuses have been destroyed by conquest
(debellatio); second, on recognition that stops third parties from contesting
the validity of a recognized title; and, third, on consent--namely, consent of
the cession of territory. |
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The legal function of frontiers is to
settle the exact extent of contiguous territories by unilateral action, express
consent, recognition, or acquiescence. |
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The airspace
above, and the subsoil below, national territory, including the territorial sea,
are treated as appurtenances of a state's territory. |
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Internal waters include ports, harbours,
all waters on the landward side of the baseline of the territorial sea, and
historic bays; i.e., bays that,
irrespective of their width, are treated, on grounds of acquiescence or
recognition, as subject to the jurisdiction of the coastal state. |
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The normal baseline of the territorial
sea is the low-water line along a state's seacoast. It is generally recognized
that the minimum breadth of the territorial sea is three miles. The outer limit
of the territorial sea, which constitutes also the frontier between national
territory and the high sea, is drawn by reference to the baseline. (see also territorial
waters) |
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Most of the sea matters are not codified
in the 1958 Convention on the Territorial Sea and Contiguous Zone. While it has
proved impossible to reach agreement on the breadth of the territorial sea, it
is laid down in the above convention that the contiguous zone--i.e.,
a geographically limited zone of the high seas contiguous to the territorial
sea in which coastal states exercise a limited jurisdiction over foreign
ships--should not extend beyond 12 miles from the baseline of the territorial
sea. (G.Sc.) |
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The successful launching in 1957 of the
first artificial Earth satellite marked the beginning of a new branch of
international law, namely, international space law.
This refers to those rules within the international legal system that regulate
human activities in outer space, including the Moon and other celestial bodies,
and in relation to outer space. |
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International space law embraces, in the
first place, all existing and future rules of international customary or treaty
law that contain no geographical limitations, expressed or implied, and are
consequently applicable to any conduct of subjects of international law. Insofar
as international customary law is concerned, these rules include virtually all
those governing the principles of recognition, consent, good faith,
self-defense, and international responsibility. That, in principle,
international law was from the very beginning applicable to outer space has been
reaffirmed by the United Nations on several occasions. |
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International space law includes,
second, such new rules, whether of customary or treaty law, that have evolved
since the beginning of the space age or that may be developed specifically to
regulate the activities of states and their nationals in space or actions in
relation to such activities. While a number of bilateral and multilateral
agreements as well as international agencies already exist in this field, the
United Nations has been particularly active in the development of general
international space law. It has adopted a number of resolutions embodying
recommended standards of conduct in relation to outer space and has prepared
five multilateral treaties for adoption by states. |
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These multilateral treaties are: (1) the
1967 Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies; (2) the
1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space; (3) the 1972 Convention on
International Liability for Damage Caused by Space Objects; (4) the 1975
Convention on Registration of Objects Launched into Outer Space; and (5) the
1979 Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies. The last one proclaims the Moon and other celestial bodies
within the solar system, other than the Earth, together with their natural
resources, the common heritage of mankind. All five treaties are in force among
their respective contracting parties, but the most important of these are
doubtless the treaties on principles and on liability. The latter lays down
detailed rules governing the recovery of damages for losses caused by space
objects. |
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Many of the provisions of the treaty on
principles are not only binding on the contracting parties in terms of treaty
law but also have gained wide acceptance from both parties and nonparties as
expressing rules of general international law; consequently they are binding on
all states. In fact, the technological advances in this sphere have been so fast
and the need to adopt appropriate legal rules in response thereto has been so
pressing that it has become increasingly apparent that much of the product of
what has traditionally been called the law-creating process of international
customary law need not rest on custom at all. Such practice as may be required
as one of the two constitutive elements of a rule of international customary law
needs to have existed only long enough to prove the existence of a general
acceptance among states of the norm in question as a rule of international law.
In fact, the law-creating process can be reduced to a single act or omission,
and its role is reduced to that of merely establishing the acceptance of a given
rule as law by the generality of states. |
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Among the norms of treaty law that
appear to have acquired such general acceptance are primarily some of the basic
principles found in the 1967 treaty. They include the principles that outer
space, including the Moon and other celestial bodies, is not subject to national
appropriation (Article II) and that the state of registry of a space object
retains jurisdiction and control over such object and over any personnel thereof
while in outer space or on a celestial body (Article VIII). If so, this means
that under general international law there can be no territorial acquisition or
exercise of territorial sovereignty in outer space and on celestial bodies. With
regard to this issue, at least some of the rules underlying the principle of
freedom of the high seas are capable of being applied by analogy. Two other
principles from the 1967 treaty have probably also achieved the same status as
rules of general international law: first, states bear international
responsibility for national activities in space and must subject such
activities, whether conducted by official bodies or private individuals, to
authorizations and control (Article VI); and second, states that launch or
procure the launching of a space object or from whose territory or facility a
space object is launched are internationally liable for damage caused to another
state or its nationals by such object (Article VII). |
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More problematic is Article IV of the
1967 treaty, a key provision from the standpoint of world disarmament. Article
IV, in its first paragraph, prohibits the stationing of nuclear weapons or other
weapons of mass destruction in outer space or on celestial bodies, while in its
second paragraph it prescribes that the Moon and other celestial bodies (without
mention of outer space as such) shall be "used . . . exclusively for
peaceful purposes." The problem is twofold. First, it is difficult to
determine, on the evidence available, whether this provision has been generally
accepted as declaratory of general international law. Second, there is a wide
division of opinion as to the interpretation of the word peaceful in the second
paragraph. One school maintains that it means "nonmilitary," while the
other argues that it means simply "nonaggressive." The latter
interpretation appears to have gained currency, although it renders the
stipulation supererogatory, inasmuch as aggressive activities as such are
contrary to international law wherever they may occur. |
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The arrival of the space age has created
many problems crying out for legal regulation. International agencies other than
the United Nations have also contributed to the development of international
space law. The International Telecommunication Union, for example, has done much
to regulate, among other things, the use of radio frequencies for
telecommunications and direct television broadcasting by artificial satellites.
Many problems remain unresolved and others will no doubt arise. Among those
being discussed are the definition of outer space and its delimitation from
airspace, equitable use of the geostationary orbit, the use of nuclear-powered
satellites, international direct television broadcasting, remote sensing, and
the military use of outer space. (Bi.C.) |
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States and international institutions
can act only through individuals. Thus, relations between states--and
international institutions--are based on the principle of necessary
representation. The chief representative of a state is the head of state who, in
principle, has plenary powers to commit his state. After a number of earlier
attempts to settle continuous disputes over the precedence of diplomatic envoys,
the classes of diplomatic envoys and their privileges and immunities are now
codified in the 1961 Vienna Convention on Diplomatic Relations. (see also extraterritoriality) |
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Similarly, the rights and immunities of
consuls--resident officials stationed abroad with the consent of the receiving
state for purposes of promoting trade and assisting nationals of the sending
country--are codified in the 1963 Vienna Convention on Consular Relations. |
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The relevant rules for such protection
grew out of individual safe-conducts and innumerable bilateral treaties of
commerce and navigation and, between civilized nations, were gradually taken for
granted as rules of international customary law or general principles of law
recognized by civilized nations. |
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These rules imply the application of a
minimum standard that complies with the rule of law, as understood in liberal
and democratic Western countries, regarding the protection of the life, liberty,
dignity, and property of foreign nationals. Regarding property, the freedom of
states to expropriate or nationalize private property in the public interest
with full (or adequate), prompt, and effective compensation is generally
accepted as a rule of international customary law. The rule has behind it the
authority of the Permanent Court of International Justice and a considerable
number of international tribunals. Doubts that have been raised against the
continued validity of the rule (especially in Communist and capital-importing
states) are related to the application of the rule in cases of doubtful titles
to property rather than to the existence of the rule itself. There is also a
widespread mixture of politics, trade, and aid that, on pragmatic grounds,
frequently makes inadvisable an insistence by capital-exporting states on strict
compliance with the rule. (see also property law) |
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Under international customary law the
right of foreign nations to trade in a country and use its means of
communications, such as roads, rivers, and airspace, is within the exclusive
jurisdiction of the territorial sovereign. By way of treaty such rights of
commerce and navigation are granted normally on relative terms; i.e., by reference to optional standards. The classical standards of
international treaty law in these fields are those of most favoured nation
treatment (treatment on the basis of foreign parity), national treatment
(treatment on the basis of inland parity), identical treatment, equitable
treatment, good-neighbourly treatment, open-door treatment (equal treatment of
all concerned in a third sovereign state or a territory such as a United Nations
trust territory), and preferential treatment. In state practice, some of these
standards are employed cumulatively or alternatively in one and the same treaty.
(see also international
trade) |
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In accordance with a long-established
practice, states have concluded extradition treaties enabling them to secure the
return of fugitives from their own territorial jurisdiction. In states in which
the rule of law in the Western sense applies, considerable care is taken to
define precisely the offenses for which extradition may be granted, and
extradition normally is limited to nonnationals of the country requested to
grant extradition. While a number of states take a different view of political
crimes, it is a liberal Western tradition to exclude political offenders from
extradition unless they are charged with an attack on life. |
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In the absence of consensual undertaking
to the contrary, any state may grant asylum in
its own territory to any individual. This territorial asylum differs from
diplomatic asylum; i.e., asylum that
is granted in diplomatic premises situated in another state's territory. In the
absence of express treaty rights to this effect, diplomatic asylum may not be
granted, but, on humanitarian grounds, the territorial sovereign often
acquiesces in such action. |
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It is necessary to distinguish three
typical situations: (1) revolution--this, in
principle, is treated as a purely internal affair and does not affect the
obligations of the subject of international law concerned; (2) territorial
changes--if two states decide on the cession of an insignificant portion of
territory, the matter is settled between the parties by the rules on consent
and, in relation to third parties, by those on recognition; if a state agrees to
its own truncation or if a composite state is dismembered, the legal
consequences of such changes are settled by treaty, recognition, or
acquiescence; (3) belligerent occupation--in the case of belligerent occupation
falling short of debellatio, any territorial changes are treated as temporary
while the war lasts. Furthermore, it is presumed that in the absence of any
express settlement in a treaty of cession the public property of the ceding
state becomes automatically the property of the cessionary state, and the public
law of the ceding state is replaced by that of the cessionary state. |
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There is no general rule of
international customary law imposing automatic succession by the cessionary
state to the state debts of the ceding state. On equitable grounds, however, a
rule to the opposite effect is frequently asserted regarding strictly localized
debt. Cessionary states are under no obligation to assume any responsibility for
tortious acts or omissions of the ceding state. |
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In principle, treaties are binding only
between the contracting parties. Thus, if one of the parties cedes part of its
territory, existing treaties are interpreted according to the rule of movable
treaty frontiers; that is, the territorial scope of treaty obligations is
presumed to be automatically adjusted to subsequent territorial changes. In
cases in which the nonexistence of rules of international law on the automatic
succession to international obligations would lead to harsh results, these are
likely to be mitigated by the need of the new subject of international law
concerned to be recognized and the freedom of existing subjects to make
recognition dependent on compliance with justified expectations. |
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Global multipurpose institutions, such
as the League of Nations and the United
Nations, are best understood as organizational superstructures of
international customary law on a consensual and confederate basis. Their impact
on international law is threefold: modification by express consent of the rules
underlying the fundamental principles of international law, indirect
modification of these rules by acquiescence on the part of member states in the
action of organs not actually authorized to exercise lawmaking functions, and
initiation of the further codification and development of international law. |
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The chief modification introduced by the
United Nations Charter is the limitation of the
rights of subjects of international law under international customary law to
threaten or resort to armed reprisals and war. This extends the duties of the
former members of the League of Nations and parties to the Kellogg-Briand Pact
of 1928. The prohibition covers the threat or use of force in circumstances
falling short of war in the formal sense. |
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The principal means of indirect
lawmaking in the United Nations are resolutions of the General Assembly that are
adopted unanimously or with the two-thirds majority required for important
questions. If such resolutions purport to be declaratory of international law,
it is difficult for member states who voted for them to claim that, on the
matters involved, the General Assembly is limited to the mere task of making
recommendations. If the organs concerned of the United Nations act consistently
on particular resolutions, eventually a time comes when even those states that
have voted against them will be deemed to have acquiesced in such resolutions.
Nonmember states that are admitted to membership in the United Nations after
such resolutions have been adopted may find themselves in a similar situation.
They have obtained their recognition on the assumption that they will abide by
the generally accepted rules of international law, and, increasingly, member
states that grant recognition may equate the near-universal law and practice of
the United Nations with general international customary law. Moreover, new
members must expect that they join this global confederation as they find it. |
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A number of resolutions passed by the
General Assembly fall into this in-between category of law-in-the-making--e.g.,
those on the Nuremberg Principles that dealt with crimes against peace, war
crimes, and crimes against humanity (Res. No. 95[II], 1946); genocide (Res. No.
96[I], 1946); the Universal Declaration of Human Rights (Res. No. 217[III],
1948); the right of peoples and nations to self-determination (Res. No.
637[VII], 1952); permanent sovereignty over natural resources (Res. No.
1803[XVII], 1962); denuclearization (Res. No. 1884[XVIII], 1963); and
nonintervention (Res. No. 2131[XX], 1965). |
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In some instances, as before the
adoption of the Universal Declaration of Human Rights, the almost unanimous
protestations by speakers in the General Assembly regarding the purely moral
character of the precepts enshrined in the declaration provide adequate evidence
of the nonlegal character of the resolution in question. In others, such
intention may become evident from the self-contradictions contained in the
resolutions themselves. In still others, the intimation of the need for further
study and the request for codification of the subject may suggest the political
rather than legal character of a particular resolution. But if at any subsequent
stage it can be shown that large and consistent majorities of the principal
organs of the United Nations accept rules laid down in such resolutions as
legally binding, the transition from law-in-the-making to new law tends to be
made. |
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The International
Law Commission, an auxiliary but autonomous organ of the General Assembly
of the United Nations, consists of 25 members of recognized competence in
international law (Article 2[1] of the Commission's Statute). It has initiated
codification and development in a number of fields of international law. In
practice, the commission does not distinguish between its efforts on the
codification (i.e., the restatement of
existing international law) and the development of international law by draft
rules involving changes in existing international customary law. Thus, any of
the rules proposed by the commission must be examined from this point of view. |
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In the field of humanitarian
law (i.e., the protection of the
individual) the International Convention on the Elimination of All Forms of
Racial Discrimination of 1965 and the International Covenants on Civil and
Political and on Economic, Social, and Cultural Rights, opened for signature in
1966, were channeled from the United Nations Commission on Human Rights to the
General Assembly of the United Nations through the Economic and Social Council.
On a level of closer constitutional and ideological homogeneity, the Council of
Europe adopted the Rome Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950, as subsequently amended, and in the European
Commission of Human Rights and the European Court of Human Rights provided the
most effective means yet put into operation for the implementation of the
protection of human rights. |
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On specialized topics, such as the law
of the sea, international labour law, and international private law, the
Inter-Governmental Maritime Consultative Organization, the International Labour
Organisation, and the Hague Conference of Private Law, respectively, fulfill
drafting functions of a quasi-legislative character. Yet it remains for the
sovereign states concerned to decide if they want to limit their freedom of
action by such further consensual commitments. |
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If this will exists, states are not
limited to the development of international law on a confederate level. They are
free to transform regional areas into federations of a territorial type such as
the Commonwealth of Australia. They may also try functional federation on the
model of such supranational organizations as the European Union. Under these
conditions the wheel has come full circle, and international law turns again
into municipal law, but, until such a development becomes universal,
international law is likely to remain indispensable in the relations between
sectional groupings. (G.Sc.) |
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BIBLIOGRAPHY |
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General treatises include the following:
MICHAEL AKEHURST, A Modern Introduction to
International Law, 5th ed. (1984); GERHARD VON GLAHN, Law
Among Nations: An Introduction to Public International Law, 4th ed. (1981);
R.C. HINGORANI, Modern International Law, 2nd ed. (1984); RICHARD FALK, FRIEDRICH
KRATOCHWIL, and SAUL H. MENDLOVITZ (eds.), International
Law: A Contemporary Perspective (1985); J.L. BRIERLY, The Law of Nations: An Introduction to the International Law of Peace, 6th
ed. edited by HUMPHREY WALDOCK (1963); CHARLES CHENEY HYDE, International
Law, Chiefly as Interpreted and Applied by the United States, 2nd rev. ed.,
3 vol. (1945); MYRES S. McDOUGAL, Studies
in World Public Order (1960); D.P. O'CONNELL, International
Law, 2nd ed., 2 vol. (1970); L.F.L. OPPENHEIM, International
Law: A Treatise, 8th ed. edited by H. LAUTERPACHT, 2 vol. (1955, reprinted
1974); GEORG SCHWARZENBERGER and E.D. BROWN, A Manual of International Law, 6th ed. (1976); MAX SØRENSON (ed.), Manual
of Public International Law (1968); PAUL REUTER, Droit
international public, 5th rev. ed. (1976); CHARLES ROUSSEAU, Droit
international public, 10th ed. (1984); GEORG DAHM, Völkerrecht, 3 vol. (1958-61); ALFRED VERDROSS, Völkerrecht,
5th ed. edited by STEPHAN VEROSTA and KARL ZEMANEK (1964); D. ANZILOTTI, Corso di diritto internazionale, 4th ed., vol. 1 (1964); ANGELO P.
SERENI, Diritto internazionale, 4 vol.
in 5 (1956-65); CÉSAR SEPÚLVEDA, Derecho
internacional, 13th ed. (1983); ACADEMY OF SCIENCES OF THE U.S.S.R., International
Law, trans. from Russian by DENNIS OGDEN (1967); G.I. TUNKIN, Voprosy
mezhdunarodnogo prava (1960), available also in French and German trans.;
EDWARD McWHINNEY, Conflict and Compromise:
International Law and World Order in a Revolutionary Age (1981); JOHN A.
PERKINS, The Prudent Peace: Law as Foreign
Policy (1981); BIN CHENG, "Outer Space: The International Legal
Framework," in INSTITUTE OF INTERNATIONAL PUBLIC LAW AND INTERNATIONAL
RELATIONS OF THESSALONIKI, Air and Outer
Space Law, pp. 41-106, vol. 10 of Thesaurus Acroasium (1981); GLENN H. REYNOLDS and ROBERT P. MERGES, Outer
Space: Problems of Law and Policy (1989); NANDASIRI JASENTULIYANA and ROY
S.K. LEE (eds.), Manual on Space Law, 4 vol. (1979-81); CARL Q. CHRISTOL, The
Modern International Law of Outer Space (1982); and A.S. PIRADOV (ed.), International
Space Law (1976; originally published in Russian, 1974). |
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Treaties are collected in CLIVE PARRY
(ed.), The Consolidated Treaty Series, 231 vol. (1969-81); LEAGUE OF NATIONS, Treaty
Series: Publications of Treaties and International Engagements Registered with
the Secretariat of the League, 205 vol. in 211 (1920-46), superseded by
UNITED NATIONS, Treaty Series: Treaties and International Agreements Registered or
Filed and Recorded with the Secretariat of the United Nations (1946- );
UNITED NATIONS, List of Treaty Collections
(1956, reprinted 1981); and MANLEY O. HUDSON (ed.), International
Legislation, 9 vol. (1931-50, reprinted 1970-72). |
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UNITED NATIONS, OFFICE OF LEGAL AFFAIRS,
CODIFICATION DIVISION, Reports of
International Arbitral Awards (irregular); International Law Reports (annual); and A.M. STUYT, Survey
of International Arbitrations, 1794-1970 (1972), contain reports of judicial
case law. |
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Digests of state practice include
ALEXANDRE CHARLES KISS (ed.), Répertoire
de la pratique Française en matière de droit international public,
6 vol. (1962-69); British Practice in
International Law (irregular); JOHN BASSET MOORE (ed.), A
Digest of International Law, 8 vol. (1906, reprinted 1970); GREEN HAYWOOD
HACKWORTH (ed.), Digest of International Law, 8 vol. (1940-44, reprinted 1973); and
MARJORIE M. WHITEMAN (ed.), Digest of
International Law, 15 vol. (1963-73). |
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Reference works are KARL STRUPP (ed.), Wörterbuch
des Völkerrechts, 2nd ed. edited by HANS-JÜRGEN SCHLOCHAUER et
al., 3 vol. (1960-62); UNION ACADÉMIQUE INTERNATIONALE, Dictionnaire de la terminologie du droit international (1960); and
JAMES R. FOX, Dictionary of International
& Comparative Law (1992). |
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Useful periodicals and yearbooks include
The American Journal of International Law (quarterly);
Archiv des Völkerrechts (quarterly);
The British Yearbook of International
Law (annual); Indian Yearbook of
International Affairs (annual); The
Japanese Annual of International Law (annual); Revue
générale de droit international public (quarterly); Rossiski
ezhegodnik mezhdunarodnogo prava (annual), with English summaries; The
Year Book of World Affairs (annual); Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht (quarterly);
Journal of Space Law (semiannual); Annals of Air and Space Law (annual), in English and French; and
INTERNATIONAL INSTITUTE OF SPACE LAW. COLLOQUIUM, Proceedings (annual). |
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JACOB ROBINSON, International Law and Organization: General Sources of Information
(1967), is a bibliography. |
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(G.Sc./
Bi.C./Ed.) |
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