International Law

I

Introduction

International Law, principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another. International law is the law of the international community. Most international law consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations. Some international law is also created by the rulings of international courts and organizations.

The purposes of international law include resolution of problems of a regional or global scope (such as environmental pollution or global warming), regulation of areas outside the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service). International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during wars, and to improve the human condition during peacetime.

Enforcement of international law is often difficult because nations are sovereign (independent) powers that may put their own interests ahead of those of the international community. In addition, the mechanisms of enforcement are young and not well developed. Enforcement may be effectively achieved, however, through the actions of individual nations, agencies of international organizations such as the United Nations (UN), and international courts. The United Nations Security Council can authorize economic sanctions, diplomatic sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and states have always been the primary legal entities affected by international law. As the global system has become more complex, however, international law has come to recognize and regulate international organizations, businesses, nonprofit entities, and individuals. The emergence of international human rights law and, more recently, international criminal law reflects the fact that individuals today are direct subjects of international law in certain respects.

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II

Origins

The need for rules of conduct between independent political entities developed along with government in ancient times. Early civilizations established rules governing the conduct of hostilities, the making and observance of treaties, and the treatment of foreign traders, travelers, and diplomats. These rules were often based on ritual and custom. The oldest known treaty, preserved in an inscription on a stone monument, is a peace treaty between two city-states of Sumer, dating from about 2500 bc. The empires of the ancient Middle East concluded a considerable number of treaties between 2000 and 1000 bc concerning topics still debated today, such as the extradition of fugitives and the creation of military alliances.

Later civilizations further developed tenets of international law. Jewish law as set forth in the Old Testament in the Book of Deuteronomy contains prescriptions for the mitigation of warfare, notably prohibitions against the killing of women and children. The Greek city-states had an elaborate treaty system governing many aspects of their mutual relations. In Asia the political units of ancient India and China, during certain periods, also developed and applied international law.

Beginning with the era of the Roman Republic (509 to 27 bc), the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens (noncitizens) subject to Roman rule and the relations between Roman citizens and aliens. They recognized in principle the duty of a nation to refrain from engaging in warfare without a just cause and originated the idea of a just war.

Modern international law began to develop with the rise of national states in Europe after the 15th century, when the basic ideas of national territory and jurisdiction were established. In 1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius published his celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotius argued that existing customs governing the relations between nations had the force of law and were binding unless contrary to natural justice or the law of nature (natural law), an immutable higher law governing all human conduct. Grotius’s influence on international affairs and the settlement of wars was great, and he is sometimes called the father of modern international law. His ideas became the cornerstone of the international system as established by the Peace of Westphalia (1648), a treaty that ended the Thirty Years’ War.

Other scholars and statesmen further described and developed the basic rules of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatly influenced the framers of the Constitution of the United States with its ideas of natural law governing the behavior of states. Over time scholars gave increasing emphasis to the idea of state sovereignty, so that by the end of the 19th century the theoretical foundation of international law had shifted from natural law to a strictly consensual approach known as positivism. Positivism claims that each nation is bound only by the international rules that it freely accepts to limit its otherwise unlimited freedom of action. The clash between positivists and adherents of natural law continues today. Conflict is most pronounced over the issue of whether there are fundamental “higher norms” of international law, a principle called jus cogens, that sovereign states are obliged to respect.

III

The Modern System

Modern international law stems from three main sources: treaties, customs, and the generally accepted principles of law derived from national legal systems throughout the world. International organizations also play an important role in the formation of international law.

A

Treaties

Treaties are written agreements between two or more sovereign states. International organizations may also be given the capacity to make treaties, either with sovereign states or other international organizations. Treaties may be known by many other names—for example, agreement, convention, protocol, pact, and covenant—but the name chosen generally does not affect the legal status of the agreement. As long as the parties intend the text to be binding, it is a treaty. Treaties may incorporate rules of custom or develop new law.

The present system of international law remains largely consensual and centered on the sovereign state. It is within the discretion of each state to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international organization such as the UN is free to ratify any convention adopted by that organization. Treaty law thus is created by the express will of states.

Treaties and conventions were, until the 20th century, usually bilateral (between two nations), but some multilateral treaties resulted from international conferences held in the 19th century, before permanent international organizations were created. Such conferences played an important part in the development of the international legal system. Noteworthy examples include the Congress of Vienna, which through its Final Act of 1815 reorganized Europe after the defeat of Napoleon and also contributed to the body of international law. It established rules for diplomatic procedure and the treatment of diplomatic envoys. On the urging of Britain, it also included a general condemnation of the slave trade. The Conference of Paris (1856) was convened to terminate the Crimean War. It also adopted the Declaration of Maritime Law that abolished privateering (the use of private ships during war) and letters of marque (licenses given to private citizens to arm ships and attack enemy merchants), modernized the rights of neutrals during maritime war, and required blockades to be effective. The Declaration of Paris also initiated the practice of allowing nations other than the original signatories to accede (become a party to) to an agreement.

In 1864 a conference convened in Geneva, Switzerland, at the invitation of the Swiss government. The conference approved a convention for the proper treatment of wounded soldiers on the battlefield and the protection of medical personnel; many nations subsequently acceded to this convention, the first Geneva Convention. The peace conferences held in 1899 and 1907 in The Hague, the Netherlands, resulted in a number of conventions designed to avoid or mitigate the rigors of war. The 1899 conference adopted a Convention for the Pacific Settlement of International Disputes, which created the Permanent Court of Arbitration in The Hague to settle disputes between nations (see Hague Conferences).

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