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International law
International law
is the set of rules generally regarded and accepted as binding in relations between states and between nations.[1][2] It serves as a framework for the practice of stable and organized international relations.[3] International law
International law
differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights
European Court of Human Rights
or the International Criminal Court. Treaties
Treaties
such as the Geneva Conventions may require national law to conform to respective parts. Much of international law is consent-based governance. This means that a state member is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct.[4] This is an issue of state sovereignty. However, other aspects of international law are not consent-based but still are obligatory upon state and non-state actors such as customary international law and peremptory norms (jus cogens).

Contents

1 History 2 International relations

2.1 Treaties 2.2 Statehood and responsibility 2.3 Territory and the sea 2.4 International organisations

3 Social and economic policy

3.1 Human rights 3.2 Labour law 3.3 Development and finance 3.4 Environmental law 3.5 Trade

4 Conflict and force

4.1 War and armed conflict 4.2 Humanitarian law 4.3 International criminal law

5 Courts and enforcement

5.1 Domestic enforcement 5.2 International bodies 5.3 International courts 5.4 East Africa Community 5.5 Union of South American Nations 5.6 Andean Community of Nations

6 International legal theory

6.1 Terminology

7 Criticisms 8 See also 9 Notes 10 References 11 External links

History[edit] Main article: History of international law

Sir Alberico Gentili
Alberico Gentili
is regarded as the Father of international law.[5]

The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not. This theory of power interruptions can also be found in the writings of the Roman Cicero
Cicero
and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time [6] The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, and not binding except as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly destructive, most markedly towards civilians, and civilised peoples decried their horrors, leading to calls for regulation of the acts of states, especially in times of war. The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, and Alberico Gentili, Francisco de Vitoria
Francisco de Vitoria
and Hugo Grotius, the "fathers of international law."[7] Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings.[8] One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War
United States Civil War
and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law. This led to the first prosecution for war crimes—in the case of United States
United States
prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War. In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not limited to, the Permanent Court
Court
of Arbitration in 1899; the Hague and Geneva Conventions, the first of which was passed in 1864; the International Court of Justice
International Court of Justice
in 1921; the Genocide
Genocide
Convention; and the International Criminal Court, in the late 1990s. Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute. International relations[edit] Main articles: Sources of international law and List of ICJ cases Under article 38 of the Statute
Statute
of the International Court
Court
of Justice, international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law". International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War
Second World War
with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations.

Colombia
Colombia
v Perú [1950] ICJ 6, recognising custom as a source of international law, but a practice of giving asylum was not part of it. Belgium v Spain
Belgium v Spain
[1970] ICJ 1, only the state where a corporation is incorporated (not where its major shareholders reside) has standing to bring an action for damages for economic loss.

International law
International law
is sourced from decision makers and researchers looking to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute
Statute
of the International Court
Court
of Justice: Treaties, customs, and general principles are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law. Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute
Statute
suggests an implicit hierarchy of sources.[9] However, there is no concrete evidence, in the decisions of the international courts and tribunals, to support such strict hierarchy, at least when it is about choosing international customs and treaties. In addition, unlike the Article 21 of the Rome Statute
Statute
of the International Criminal Court, which clearly defines hierarchy of applicable law (or sources of international law), the language of the Article 38 do not explicitly support hierarchy of sources. The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute
Statute
of the Permanent Court
Court
of International Justice, which was succeeded by the United Nations
United Nations
Charter
Charter
and is preserved in the United Nations
United Nations
Article 7 of the 1946 Statute
Statute
of the International Court
Court
of Justice.[10] Treaties[edit] Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law interpretation is within the domain of the protagonists, but may also be conferred on judicial bodies such as the International Court
Court
of Justice, by the terms of the treaties or by consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end. Insofar as treaties are concerned, the Vienna Convention on the Law
Law
of Treaties writes on the topic of interpretation that:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1))

This is actually a compromise between three different theories of interpretation:

The textual approach, a restrictive interpretation, which bases itself on the "ordinary meaning" of the text; that approach assigns considerable weight to the actual text. The subjective approach, which takes into consideration i. the idea behind the treaty, ii. treaties "in their context", and iii. what the writers intended when they wrote the text. A third approach, which bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation".

These are general rules of interpretation; specific rules might exist in specific areas of international law.

Greece v United Kingdom
Greece v United Kingdom
[1952] ICJ 1, ICJ had no jurisdiction to hear a dispute between the UK government and a private Greek businessman under the terms of a treaty. United Kingdom v Iran
United Kingdom v Iran
[1952] ICJ 2, the ICJ did not have jurisdiction for a dispute over the Anglo-Iranian Oil Co. being nationalised. Oil Platforms case (Islamic Republic of Iran v United States
United States
of America) [2003] ICJ 4, rejected dispute over damage to ships which hit a mine.

Statehood and responsibility[edit] See also: Monism and dualism in international law International law
International law
establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law
International law
is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law
International law
is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade. In theory all states are sovereign and equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".[11] Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals. The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Numerous people now view the nation-state as the primary unit of international affairs, and believe that only states may choose to voluntarily enter into commitments under international law, and that they have the right to follow their own counsel when it comes to interpretation of their commitments. Certain scholars[who?] and political leaders feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank, argue that international law has evolved to a point where it exists separately from the mere consent of states, and discern a legislative and judicial process to international law that parallels such processes within domestic law. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations. A number of states place emphasis on the principle of territorial sovereignty, thus seeing states as having free rein over their internal affairs. Other states oppose this view. One group of opponents of this point of view, including many European nations, maintain that all civilized nations have certain norms of conduct expected of them, including the prohibition of genocide, slavery and the slave trade, wars of aggression, torture, and piracy, and that violation of these universal norms represents a crime, not only against the individual victims, but against humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual responsible for violation of international law, he "is become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind",[12] and thus subject to prosecution in a fair trial before any fundamentally just tribunal, through the exercise of universal jurisdiction. Though the European democracies tend to support broad, universalistic interpretations of international law, many other democracies have differing views on international law. Several democracies, including India, Israel
Israel
and the United States, take a flexible, eclectic approach, recognizing aspects of international law such as territorial rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being subjects of international law at all. Democracies in the developing world, due to their past colonial histories, often insist on non-interference in their internal affairs, particularly regarding human rights standards or their peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter.

Case Concerning United States
United States
Diplomatic and Consular Staff in Tehran [1980] ICJ 1 Democratic Republic of the Congo v Belgium
Democratic Republic of the Congo v Belgium
[2002] ICJ 1

Territory and the sea[edit] Main article: Law
Law
of the Sea

Territorial dispute Libya v Chad
Libya v Chad
[1994] ICJ 1 United Kingdom v Norway
United Kingdom v Norway
[1951] ICJ 3, the Fisheries case, concerning the limits of Norway's jurisdiction over neighbouring waters Peru v Chile
Peru v Chile
(2014) dispute over international waters. Bakassi
Bakassi
case [2002] ICJ 2, between Nigeria and Cameroon Burkina Faso-Niger frontier dispute case (2013) United Nations
United Nations
Convention on the Law
Law
of the Sea Corfu Channel Case
Corfu Channel Case
[1949] ICJ 1, UK sues Albania for damage to ships in international waters. First ICJ decision. France v United Kingdom
France v United Kingdom
[1953] ICJ 3 Germany v Denmark and the Netherlands
Germany v Denmark and the Netherlands
[1969] ICJ 1, successful claim for a greater share of the North Sea continental shelf by Germany. The ICJ held that the matter ought to be settled, not according to strict legal rules, but through applying equitable principles. Case concerning maritime delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ 3

International organisations[edit] Main articles: Intergovernmental organization and Global administrative law

United Nations World Trade Organisation International Labour Organisation NATO European Union G7 and G20

Social and economic policy[edit] See also: Conflicts of laws

Netherlands v Sweden
Netherlands v Sweden
[1958] ICJ 8, Sweden had jurisdiction over its guardianship policy, meaning that its laws overrode a conflicting guardianship order of the Netherlands. Liechtenstein v Guatemala
Liechtenstein v Guatemala
[1955] ICJ 1, the recognition of Mr Nottebohm's nationality, connected to diplomatic protection. Italy v France, United Kingdom and United States
United States
[1954] ICJ 2

Human rights[edit] Main articles: International human rights law and Human rights

Universal Declaration of Human Rights Croatia–Serbia genocide case
Croatia–Serbia genocide case
(2014) ongoing claims over genocide. Bosnia and Herzegovina v Serbia and Montenegro
Bosnia and Herzegovina v Serbia and Montenegro
[2007] ICJ 2 Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ 1

Labour law[edit]

v t e

International labour sources

ILO Declaration of Fundamental Rights of 1998

Workers' Representatives Convention, 1971

Minimum Wage Fixing Convention, 1970

Holidays with Pay Convention (Revised), 1970

Indigenous and Tribal Peoples Convention, 1989

Termination of Employment Convention, 1982

Protection of Workers' Claims (Employer's Insolvency) Convention, 1992

Employment Policy Convention, 1964

Private Employment Agencies Convention, 1997

Employment Promotion and Protection against Unemployment Convention, 1988

Social Security (Minimum Standards) Convention, 1952

Singapore Ministerial Declaration (13 December 1996)

Brussels I Regulation
Brussels I Regulation
(EC) , recital 13, arts 18-20

Rome I Regulation
Rome I Regulation
(EC) recitals 34-5, art 8

Ravat v Halliburton Ltd
Ravat v Halliburton Ltd
[2012]

see Labour law

Main articles: International labour law
International labour law
and Labour law

International Labour Organization ILO Conventions Declaration of Philadelphia of 1944 Declaration on Fundamental Principles and Rights at Work of 1998 United Nations
United Nations
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families the Convention on the Elimination of All Forms of Racial Discrimination 1965[13] Convention on the Elimination of All Forms of Discrimination Against Women 1981);[14] the Convention on the Rights of Persons with Disabilities
Convention on the Rights of Persons with Disabilities
2008[15]

Development and finance[edit] Main articles: International development, World Bank, and International Monetary Fund

Bretton Woods Conference World Bank International Monetary Fund

Environmental law[edit] Main articles: International environmental law
International environmental law
and Environmental law

Kyoto Protocol

Trade[edit] Main article: World Trade Organization

World Trade Organization

Conflict and force[edit] War and armed conflict[edit] Main article: Law
Law
of war

Nicaragua v. United States
United States
[1986] ICJ 1 International Court of Justice
International Court of Justice
advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

Humanitarian law[edit] Main articles: International humanitarian law
International humanitarian law
and Geneva conventions

First Geneva Convention
First Geneva Convention
of 1949, Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (first adopted in 1864) Second Geneva Convention
Second Geneva Convention
of 1949, Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1906) Third Geneva Convention
Third Geneva Convention
of 1949, Treatment of Prisoners of War, adopted in 1929, following from the Hague Conventions of 1899 and 1907. Fourth Geneva Convention
Fourth Geneva Convention
of 1949, Protection of Civilian Persons in Time of War.

International criminal law[edit] Main articles: International criminal law
International criminal law
and International Criminal Court

International Criminal Tribunal
Tribunal
for Rwanda International Criminal Tribunal
Tribunal
for the Former Yugoslavia

This section needs expansion. You can help by adding to it. (October 2012)

Courts and enforcement[edit] Main article: International Court
Court
of Justice

It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time. — Louis Henkin[16]

Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council. Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able and willing to compel compliance with international norms), "enforcement" of international law is very different from in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a particular aspect of international law, the norm may actually change according to concepts of customary international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States' declaration of war against Germany. By World War II, however, the practice was so widespread that during the Nuremberg trials, the charges against German Admiral Karl Dönitz
Karl Dönitz
for ordering unrestricted submarine warfare were dropped, notwithstanding that the activity constituted a clear violation of the Second London Naval Treaty
Treaty
of 1936. Domestic enforcement[edit] Apart from a state's natural inclination to uphold certain norms, the force of international law comes from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it may be through diplomacy and the consequences upon an offending state's reputation, submission to international judicial determination,[17][18] arbitration,[19] sanctions[20] or force including war.[21] Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter
Charter
of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter
UN Charter
guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace. International bodies[edit] Main articles: International legal system and United Nations
United Nations
General Assembly Resolution 377 Violations of the UN Charter
UN Charter
by members of the United Nations
United Nations
may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, only 'recommendations', but through its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it has the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace". The Uniting for Peace resolution was initiated by the United States
United States
in 1950, shortly after the outbreak of the Korean War, as a means of circumventing possible future Soviet vetoes in the Security Council. The legal significance of the resolution is unclear, given that the General Assembly cannot issue binding resolutions. However, it was never argued by the "Joint Seven-Powers" that put forward the draft resolution,[22] during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council.[23][24][25][26] The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made law by the Assembly's adoption of resolution 377 A. Alleged violations of the Charter
Charter
can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter
UN Charter
to recommend the "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the Council's convictions. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations. It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice
International Court of Justice
(ICJ) in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent. States can also, upon mutual consent, submit disputes for arbitration by the International Court
Court
of Justice, located in The Hague, Netherlands. The judgments given by the Court
Court
in these cases are binding, although it possesses no means to enforce its rulings. The Court
Court
may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter
Charter
of the United Nations
United Nations
to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the court's competence and jurisdiction. Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court
Court
of International Justice
Justice
in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist international lawyers. As of June 2009, there are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states. Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. Investment treaties commonly and routinely provide for enforcement by individuals or investing entities.[27] and commercial agreements of foreigners with sovereign governments may be enforced on the international plane.[28] International courts[edit] There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations
United Nations
International Court of Justice, and the International Criminal Court
International Criminal Court
(when national systems have totally failed and the Treaty
Treaty
of Rome is applicable) and the Court
Court
of Arbitration for Sport. East Africa Community[edit] Main article: East African Community There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi
Burundi
and Rwanda, a political federation with its own form of binding supranational law, but this effort has not materialized. Union of South American Nations[edit] Main article: Union of South American Nations The Union of South American Nations
Union of South American Nations
serves the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade. Andean Community of Nations[edit] Main article: Andean Community of Nations The Andean Community of Nations
Andean Community of Nations
is the first attempt to integrate the countries of the Andes Mountains
Andes Mountains
in South America. It started with the Cartagena Agreement of 26 May 1969, and consists of four countries: Bolivia, Colombia, Ecuador
Ecuador
and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries. International legal theory[edit] Main article: International legal theories International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law, the Eclectic and the Legal positivism
Legal positivism
schools of thought. The natural law approach argues that international norms should be based on axiomatic truths. 16th century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples. In 1625 Hugo Grotius
Hugo Grotius
argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of the observance of commitments. On his part, Emmerich de Vattel
Emmerich de Vattel
argued instead for the equality of states as articulated by 18th century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia. The early positivist school emphasized the importance of custom and treaties as sources of international law. 16th century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna
Congress of Vienna
marked the formal recognition of the political and international legal system based on the conditions of Europe. Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments.[29] Terminology[edit] The term "international law" is sometimes divided into "public" and "private" international law, particularly by civil law scholars, who seek to follow a Roman tradition.[30] Roman lawyers would have further distinguished jus gentium, the law of nations, and jus inter gentes – agreements between nations. On this view, "public" international law is said to cover relations between nation-states, and includes fields such as treaty law, law of sea, international criminal law, the laws of war or international humanitarian law, international human rights law, and refugee law. By contrast "private" international law, which is more commonly termed "conflict of laws", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies.[31] A further concept, more recently developing, is of "supranational law", on the law of supranational organizations. This concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.[32] Systems of "supranational law" arise when nations explicitly cede their right to make certain judicial decisions to a common tribunal.[33] The decisions of the common tribunal are directly effective in each party nation, and have priority over decisions taken by national courts.[34] The European Union
European Union
is an example of an international treaty organization which implements a supranational legal framework, with the European Court of Justice
European Court of Justice
having supremacy over all member-nation courts in matter of European Union
European Union
law. A further frequently used term is "transnational law", which refers to a body of rules that transcend the nation state.[35] Criticisms[edit] Nation states observe the principle of 'Par in parem non habet imperium', (Between equals there is no sovereign power). John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments...more ethical than legal in nature.' [36] Article 2 (1) of the UN Charter
UN Charter
confirms this Sovereignty
Sovereignty
of Nations; no state is in subjection to any other state. Also, since the bulk of international law is treaty law, binding only on signatories, then;

'If legislation is the making of laws by a person or assembly binding on the whole community , there is no such thing as international law. For treaties bind only those who sign them.'

Since states are few in number, diverse and atypical in character, unindictable, lacking a centralised sovereign power, and their agreements unpoliced and decentralised, [37], then, says Wight, 'international society is not a society at all. The condition of international relations is best described as international anarchy;

'While in domestic politics the struggle for power is governed and circumscribed by law, in international politics, law is governed and circumscribed by the struggle for power. (This is why) international politics is called power politics... War is the only means by which states can in the last resort defend vital interests...the causes of war are inherent in power politics.'

On the subject of treaty law, Charles de Gaulle
Charles de Gaulle
said this; 'Treaties are like pretty girls, or roses; they last only as long as they last.' [38] For Hans Morgenthau, international law is the weakest and most primitive system of law enforcement. Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies. [39] A Monopoly on violence is what makes domestic law enforceable; but between nations, there are multiple competing sources of force. [40] The confusion created by treaty laws, which resemble private contracts between persons, is mitigated only by the relatively small number of states. [41] On the vital subject of war, it is unclear whether the Nuremberg trials
Nuremberg trials
created new law, or applied the existing law of the Kellogg-Briand pact. In world war two, both sides violated the rules of war in respect of ships sunk and civilians bombed indiscriminately. Do such rules still exist, if habitually violated? [42] Morgenthau asserts that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary. [43] International law
International law
is also unpoliced, lacking agencies for enforcement. [44] He cites a 1947 US opinion poll in which 75% of respondents wanted 'an international police to maintain world peace'; but only 13% wanted that force to exceed the US armed forces. Later surveys have produced similar contradictory results. [45] See also[edit]

Human rights
Human rights
portal

International relations
International relations
portal Law
Law
portal

List of International Court of Justice
International Court of Justice
cases List of international public law topics List of treaties Consular law Anarchy (international relations) Aviation law and Space law Chapeau Centre for International Law
Law
(CIL) Commissions of the Danube River Comparative law Conference of the parties Diplomatic law and Diplomatic recognition Environmental agreements Global administrative law Global policeman Graduate Institute of International and Development Studies International Law
Law
Commission International litigation Internationalization of the Danube River International community International Law
Law
Commission INTERPOL Legal status of the Holy See Martens Clause Personal jurisdiction over international defendants in the United States Prize law Speaking truth to power Third World Approaches to International Law
Law
(TWAIL) UNIDROIT United Nations
United Nations
General Assembly Sixth Committee (Legal) University for Peace The European Institute for International Law
Law
and International Relations Pacta sunt servanda (agreements are to be kept) Roerich Pact Rule of Law
Law
in Armed Conflicts Project (RULAC)

Notes[edit]

^ "international law". Houghton Mifflin Company. Retrieved 13 September 2011.  ^ The term was first used by Jeremy Bentham
Jeremy Bentham
in his "Introduction to the Principles of Morals and Legislation" in 1780. See Bentham, Jeremy (1789), An Introduction to the Principles of Morals and Legislation, London: T. Payne, p. 6, retrieved 2012-12-05  ^ Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. pp. 4–5.  ^ Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. p. 4.  ^ Woods, Thomas E. (Jr.) (2005). How The Catholic Church Built Western Civilization. Washington, DC: Regnery Publishing. ISBN 0-89526-038-7.  ^ Randall Lesaffer, “Too Much History: from War as Sanction to the Sanctioning of War”, in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law
Law
(Oxford: Oxford University Press, 2015), p.37-38 ^ Thomas Woods Jr. (18 September 2012). How the Catholic Church Built Western Civilization. Regnery Publishing, Incorporated, An Eagle Publishing Company. pp. 5, 141–142. ISBN 978-1-59698-328-1.  ^ China and Her People, Charles Denby, L. C. Page, Boston 1906 page 203 ^ Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. pp. 26–27.  ^ Charter
Charter
of the United Nations, United Nations, 24 October 1945, 1 UNTS, XVI ^ Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976) ^ Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor
Prosecutor
v. Furundžija, Page 148 (2006) ^ "OHCHR". Web.archive.org. 30 May 2008. Archived from the original on May 30, 2008. Retrieved 9 October 2011. CS1 maint: Unfit url (link) ^ "Convention on the Elimination of All Forms of Discrimination against Women". United Nations. Retrieved 9 October 2011.  ^ "Convention on the Rights of Persons with Disabilities". United Nations. 30 March 2007. Retrieved 9 October 2011.  ^ Henkin, Louis (1968). How Nations Behave. p. 47.  ^ "Home – International Court
Court
of Justice". Retrieved 17 August 2015.  ^ "Contentious Cases – International Court
Court
of Justice". Retrieved 17 August 2015.  ^ "Arbitral Opinion Relative to the Gold of the National Bank of Albania". The American Journal of International Law. 49 (3): 403–405. 1 January 1955. doi:10.2307/2194880. JSTOR 2194880 – via JSTOR.  ^ "Syria Sanctions". Treasury.gov. Retrieved 17 August 2015.  ^ "The Falklands Conflict". Falkslandswar.org.uk. Retrieved 17 August 2015.  ^ United States, United Kingdom, France, Canada, Turkey, Philippines and Uruguay ^ United Nations
United Nations
General Assembly Session 5 Proces Verbal A/PV.299 1 November 1950. Retrieved 2008-04-13. ^ United Nations
United Nations
General Assembly Session 5 Proces Verbal A/PV.300 2 November 1950. Retrieved 2008-04-13. ^ United Nations
United Nations
General Assembly Session 5 Proces Verbal A/PV.301 2 November 1950. Retrieved 2008-04-13. ^ United Nations
United Nations
General Assembly Session 5 Proces Verbal A/PV.302 3 November 1950. Retrieved 2008-04-13. ^ [1][dead link] ^ "The Sandline Affair Illegality And International Law* - International Law
Law
– Australia". Mondaq.com. Retrieved 27 December 2017.  ^ Bruno Simma and Andreas L.Paulus "Symposium on method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View" 93 American Journal of International Law
Law
302 (April, 1999) ^ There is an ongoing debate on the relationship between different branches of international law. Koskenniemi, Marti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553–579. doi:10.1017/S0922156502000262. Retrieved 30 January 2015.  Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law
Law
– The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of International Humanitarian Legal Studies. 5 (1-2): 213–257. SSRN 2556825 .  ^ "Private International Law". Oas.org. Retrieved 27 December 2017.  ^ Kolcak, Hakan. "The Sovereignty
Sovereignty
of the European Court of Justice
European Court of Justice
and the EU's Supranational
Supranational
Legal System". Inquiriesjournal.com. Retrieved 27 December 2017.  ^ Degan, Vladimir Đuro (1997-05-21). Sources of International Law. Martinus Nijhoff Publishers. p. 126. ISBN 9789041104212. Retrieved 5 December 2015.  ^ Blanpain, Roger (2010). Comparative Labour Law
Law
and Industrial Relations in Industrialized Market Economies. Kluwer Law International. pp. 410 n.61. ISBN 9789041133489. Retrieved 5 December 2015.  ^ Cotterrell, Roger (2012-03-01). "What Is Transnational Law?". Law & Social Inquiry. 37 (2): 500–524. doi:10.1111/j.1747-4469.2012.01306.x. ISSN 1747-4469.  ^ James B Scott, The legal nature of international law, Columbia Law Review, vol 5 no 2, Feb 1905, p 128-30 ^ Wight, power politics, p 109 ^ speech, 2/7/1963; Oxford Dictionary of Quotations, OUP 1999, p. 255 ^ Morgenthau, Politics among nations, fifth edition, Knopf, 1976, p273 ^ ibid, p273-4 ^ ibid, p 275 ^ ibid, p 279 ^ ibid, p281 ^ ibid, p 289 ^ ibid, p 324

References[edit]

I Brownlie, Principles of Public International Law
Law
(7th edn Oxford University Press 2008) ISBN 0-19-926071-0 Dominique Carreau, Droit international, Pedone, 10e édition, 2009 ISBN 9782233005618. P.-M. Dupuy & Y. Kerbrat, "Droit international public" (10th ed., Paris, Dalloz, 2010) ISBN 9782247088935 E. Lawson, and ML Bertucci, Encyclopedia of human rights (2nd edn Taylor & Francis 1996) E. Osmanczyk, The encyclopedia of the United Nations
United Nations
and international relations (Taylor & Francis 1990) M. N. Shaw, International Law
Law
(5th edn Cambridge University Press 2003) Rafael Domingo Osle, The New Global Law
Law
(Cambridge University Press 2010)

World Encyclopedia of Law, with International Legal Research and a Law dictionary David L. Sloss, Michael D. Ramsey, William S. Dodge, International Law in the U.S. Supreme Court, 0521119561, 978-0-521-11956-6 Cambridge University Press 2011 Anaya, S.J. (2004). Indigenous Peoples in International Law. Oxford University Press. ISBN 978-0-19-517350-5.  Klabbers, J. (2013). International Law. Cambridge University Press. ISBN 978-0-521-19487-7.  Shaw, M.N. (2014). International Law. Cambridge University Press. ISBN 978-1-316-06127-5. 

External links[edit]

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Find more aboutInternational lawat's sister projects

Definitions from Wiktionary Media from Wikimedia Commons News from Wikinews Quotations from Wikiquote Texts from Wikisource Textbooks from Wikibooks Data from Wikidata

Library resources about International law

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United Nations
United Nations
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