International Law

B

Customary Law

Customary international law is unwritten and derives from the actual practices of nations over time. To be accepted as law, the custom must be long-standing, widespread, and practiced in a uniform and consistent way among nations. One example of customary international law is a nation’s right to use the high seas for fishing, navigation, overflight, and submarines.

Treaties represent another source of customary law. Although treaties generally bind only those countries that ratify them, customs may be deduced from the rules and statements contained in treaties. These new customs may be considered binding even on those states that did not sign and ratify the original treaty. Whether or not they are embodied in a written treaty, customs become part of international law because of continued acceptance by the great majority of nations.

Some customary international law has been codified in recent years. For example, the Vienna Convention on the Law of Treaties, which was approved in 1969 and took effect in 1980, codified the customary law that treaties between sovereign states are binding on their signatories and must be followed in good faith.

C

General Principles

The phrase “general principles of law” appeared in the statute of the Permanent Court of International Justice, established in 1921, three years after the end of World War I (1914-1918). The court was directed to decide disputes brought before it on the basis of existing treaty law and customary international law. Some of the diplomats and lawyers drafting the statute of the court feared, however, that disputes might arise over new international issues for which there would be no settled custom or applicable treaty. They decided, and the nations voting for the statute agreed, to add a third source of law—“general principles of law recognized by civilized nations”—to allow the court to draw upon widely recognized legal principles in national law. In this way, the court would not have to refuse to settle a dispute because of the absence of international law. General principles that have been applied by the court and its successor, the United Nations International Court of Justice, include the “clean hands” doctrine (it is improper to accuse someone of misconduct that the accuser has also engaged in), the principle that individuals should not be a judge in their own dispute, and the principle of res judicata (a case that is decided cannot be tried again).

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D

International Courts and Organizations

Judicial decisions rendered by international courts are important elements in identifying and confirming international legal rules. The most important international courts are the UN International Court of Justice, which mainly handles legal disputes between nations, and the International Criminal Court, which prosecutes individuals for genocide, war crimes, and other serious crimes of international concern. Resolutions and decisions of the UN and other international organizations now also have a great impact on the views and practices of sovereign states, sometimes leading to rapid formation of customary international law. States have given a very few international organizations, such as the European Union and the UN Security Council, the power to enact directly binding measures.

The first international organizations emerged in the 19th century. Technological advances such as the telegraph and the telephone, together with a rise in international trade, created a need for permanent international institutions to regulate problems that exceeded national boundaries. The earliest organizations of this type were specialized bodies such as the International Telegraphic Union (1865) and the Universal Postal Union (1874).

After World War I European countries created the League of Nations, an organization with a general mandate to maintain peace and prevent war. The League’s covenant was part of the Treaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in the covenant, the Permanent Court of International Justice was established in 1921 as the world’s first international court. Its role was to decide international disputes that were voluntarily submitted to the court by the nations involved, and to issue advisory opinions on disputes referred to it by the League. Although the court helped to develop international law, its judges were hampered by the lack of universal agreement on many aspects of international law.

The onset of World War II in 1939 proved the League of Nations ineffective in preventing hostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a multilateral treaty renouncing the use of war that had been signed in 1928 and ultimately ratified by more than 60 nations, including Germany and Japan. After World War II ended in 1945 the United Nations replaced the League of Nations, and the International Court of Justice succeeded the Permanent Court of International Justice.

The United Nations Charter created elaborate machinery for maintaining peace and security and for solving disputes among nations. It also specifically directed the General Assembly to encourage the progressive development and codification of international law. To carry out this task, the General Assembly created two subsidiary organs: the International Law Commission (1947) and the Commission on International Trade Law (1966). Over the years the International Law Commission has prepared drafts of treaties codifying and modernizing a number of important topics of international law, including the law of the sea, diplomatic relations, consular relations, law of treaties between nations, succession of states in respect to treaties, law of treaties between nations and international organizations, immunity of states from the jurisdiction of other states, and the law of international freshwaters. The Commission on International Trade Law drafts texts on laws concerning international commerce and economic development. Upon acceptance by the General Assembly, drafts from the commissions usually are submitted to international conferences called by the UN for adoption of the respective conventions.

In some instances, the UN has organized conferences to discuss major international issues or to negotiate treaties without prior proposal by the International Law Commission. The most important example was the third UN Conference on the Law of the Sea, which terminated its work in 1982. The conference adopted a convention (which came into force in 1994) governing all aspects of the peaceful use of the oceans, including territorial boundaries, navigational rights, and economic jurisdiction (see Freedom of the Seas). Another example is the 1992 UN Conference on Environment and Development, held in Rio de Janeiro, Brazil, and informally known as the Earth Summit. The conference produced two major treaties: the Convention on Biological Diversity, which seeks to preserve the world’s biological diversity and promote the sustainable use of its components; and the Framework Convention on Climate Change, which seeks to limit industrial emissions of gases leading to global warming. Sometimes the UN convenes major conferences to assess progress and problems concerning a specific topic, without adopting a new agreement. Such conferences have been held on human rights and on the status of women worldwide.

A landmark in the development of international law occurred in 1998 at a UN diplomatic conference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s first permanent international criminal court. Officially established in 2002, the International Criminal Court (ICC) operates independently of the United Nations and has the power to initiate investigations and prosecutions of war criminals, including those accused of genocide, crimes against humanity, and other serious crimes. Unlike previous war crimes tribunals, such as those created in response to atrocities in the former Yugoslavia and in Rwanda, the ICC’s jurisdiction is not limited to specific conflicts.

IV

International Law and National Law

Every nation is expected to obey international law. Some nations make international law automatically part of the law of their land. The U.S. Constitution designates ratified treaties, along with the Constitution itself and federal statutes, the supreme law of the land (Article VI) and empowers Congress “to define and punish … Offences against the Law of Nations” (Article I, Section 8). Customary international law is automatically incorporated into the U.S. legal system as federal common or unwritten law.

In cases involving international law, U.S. state and federal courts presume that U.S. law conforms to international law; such an attitude has been urged consistently by the Supreme Court of the United States. In some countries, such as the United Kingdom, treaties do not become effective in national law until they are enacted by Parliament. In other countries, a treaty or customary international law is given constitutional status superior to national legislation. How a sovereign state adopts and applies international law is generally left to its discretion, so long as it conforms to the law in the end.

Whatever the constitution or legal system of a nation, it cannot use its domestic law as an excuse to breach an international agreement or violate an international rule. This was made clear during the war crimes trials held in Nürnberg, Germany, following World War II. The Nürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners of war, were permitted under the domestic laws of Nazi Germany. The tribunals held that such laws were null and void because they contravened the generally valid rules of warfare. It also held that the individuals responsible for issuing and executing such laws were criminally responsible for grave breaches of international law. Today, international human rights courts often declare national laws incompatible with international rules and may award compensation to those whose rights have been violated.

V

Matters of International Concern

The scope of international law is vast. Nearly every matter of legal regulation within a nation has some international counterpart. Over the last century, advances in communications technology, growth in global trade and travel, and the advent of weapons of mass destruction have led to an enormous expansion in the range of topics regulated by international law. In addition to the classic matters of diplomacy, war and peace, trade, and territorial boundaries, international law now covers matters as diverse as environmental protection, human rights, nuclear testing, war crimes, outer space, child custody, recognition of wills and testaments, exchange of prisoners, and protection of archaeological sites and art treasures. This section discusses several major areas of international law, including peace and security, human rights, the environment, and the global commons.

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