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Sources of International Law, Essay Example

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International law does not have any codified form and is derived from various sources. International law deals with dispute between nations or between nationals of various states. Article 38 of Statute of the International Court of Justice, 1946 mentions five major sources of international law. Treaties, customs, general laws, judicial decisions and judicial writings forms such sources. This paper tries to provide a report of such sources in the order of importance

Sources of International Law.. 1

1 Introduction. 4

2 Types of international law.. 4

2.1 Public international law.. 4

2.2 Private international law.. 5

3 Sources of international law.. 5

3.1 Treaties. 6

3.1. Significance. 7

3.1.2 Contribution. 7

3.2 International customs. 8

3.2.1 Significance. 8

3.2.2 Contribution. 9

3.3 General principles of law.. 10

3.3.1 Significance. 10

3.4 Judicial decisions and juristic writings. 10

3.4.1 Judicial decisions. 11

3.4.2 Juristic writings. 11

3.5 WTO and GATT. 12

3.6 Conclusion. 12

References. 14

1 Introduction

International law is a sum of several rules and regulations applied in the act of regulation of international community. International law lacks any “Code” or parliament or any body that can be called as legislation. International Court of Justice (ICJ) is in a way considered as the court for settling disputes on international matters. Other than this there are several international courts and tribunals whose jurisdiction in international matters is dependent on parties consent. Hence such specialized tribunals and courts do not have compulsory jurisdiction opposed to national courts. Thus it can be seen that international law is decentralized in form and is to a great extent dependent on the actions of international community and this community is constituted by 192 states. In general we can say that International law is the body of rules and regulations governing relationship between states. This paper tries to outline and explain the main sources of international law and to evaluate them in terms of their significance and importance in promoting the growth and development of international business or trade (Schreuer, nd).

2. Types of international law

International law in its initial stage aimed to preserve peace among nations and at present it deals mainly with issues related to foreign policy, economic relationships and power balance. International law can be generally divided in to two branches private international law and public international law.

2.1.1 Public international law

Public international law is about the relation between states and its nationals. Public international law is codified under various matters of dispute like international trade, immigration, war conduct, criminal extradition, naturalization law, human rights and international aviation and admiralty laws.

2.1.2 Private international law

Private international laws are mostly referred to as conflict of laws because it deals with controversies in jurisdiction basically. At times a single matter will come under more than one jurisdiction and it is at this event that private international law is usually applied. It also deals with enforcement of foreign judgment. Private international law applies to corporations, individuals and other business entities and is also known as transnational law(Degan, 1997).

3 Sources of international law

International law does not have a single source as it is not codified under a single Act or regulation. It can be considered as an outcome of all the processes and materials applied for regulating and developing international community. These laws are influenced by various legal and political theories. Authority of a sovereign was considered to be limited to acts of consent to an agreement during 19 th century and this was in accordance with the legal principle of pacta sunt servanda (agreements must be kept). This is the basic principle on which international laws are formed. Thus it is the consent of states that forms the cornerstone of international law. It is this consensual view that was reflected in Statute of the Permanent Court of International Justice formed in 1920. Same maxim can be seen to be preserved in Article 38 (1) of Statute of the International Court of Justice, 1946.

Article 38 (1) describes the laws that International Court of Justice need to apply while deciding cases that comes with in its jurisdiction and this article is considered as the most authoritative listing about international law sources. According to this article, international conventions, international customs, general principles of law, judicial decisions and “teachings of the most highly qualified publicists” are to be applied by International Court of Justice in deciding cases that comes with in its jurisdiction. Thus these five sources are considered as the most important sources of international law (Degan, 1997).

When there is a dispute regarding preference between sources treaties are to be considered over any other source if such an instrument is applicable to issue in question. There is an argument that international customs and treaties are of equal value in international law and this is under the view that a new custom is likely to supersede a treaty that was formed ling before or a new treaty is likely to supersede a custom that was formed earlier. Juristic writings and judicial decisions are considered as auxiliary sources. At the same time there is no clarity as to whether general principles of law that exists in civilized nations are to be considered as auxiliary source or principal source in international law.

There is a view that practice of international organizations like United Nations which is there in Security Council resolutions or resolutions of General Assembly are to be considered as a source of international law. There are situations when modification is likely to occur in a treaty as a result of practices that takes place between parties to treaty. At times a rule is also likely to take precedence over the provisions of treaty when such a rule is given special status as part of jus cogens (compelling law). Such laws are to be followed by nations strictly and will stand above any other laws national or international (Hoof, 1983).

3.1 Treaties

Most credible laws of international law are treaties and conventions and are they are hence considered as “hard law”. International law is based on the legal principle of pacta sunt servanda and treaties almost serve this purpose. They play the role of a contract between two or more countries. Examples of treaties are defense pact or extradition treaty. At times treaties are considered as a legislation that regulates internationals relations particular aspects and at times they act as constitutions of an international organization. All treaties form a kind of contract between countries that are parties to it and hence can be regarded as source of law. Through the word “international conventions” mentioned in Article 38 (1) (a) in the Statute of the International Court of Justice, 1946 aims at treaties. Along with that this provision is also acknowledging the possibility of countries accepting treaties expressly even if they are not parties to it formally. Any treaty to be considered as a source of law need to affect non parties or must have any consequence that is more extensive than the ones imposed specifically by that particular treaty (D’Amato, 1971).

3.2 Significance

Treaties are considered as the most important source of international law. This is due to the fact that in treaty there is a contractual obligation between parties and this is almost like a legal practice that is to be followed. Further certain treaties are formed by codifying customary laws that are in existence, for example jus ad bellum and laws governing global commons. The purpose of formation of such treaty is to make a code that is generally applicable. Some treaties acquire international acceptance due to ratification by large number of states example Geneva Conventions for the Protection of War Victims, 1949. Such treaties are considered as international law in its own right.

3.3 Contribution

One of the major contributions made by treaties in international law is the importance that it granted to human rights. Human rights are considered as the most important right globally and this is the result of treaties formed for protecting human rights. Treaties are always legally binding on parties and are to be carries out in same manner as a contract. Treaties have contributed largely to various areas of international law and even to most recent subjects like usage of nuclear weapons, law relating to space etc. It was after World War II that most treaties came in to existence and focus of majority of them was on human rights. Thus it is through treaties that international law gained humanitarian aspect in all its dealings. Most treaties are meant to reproduce customary law in an international scenario and the best example for this is Vienna Convention on the Law of Treaties, 1969 (Thirlway, 1972). At the same time some treaties are in turn adopted by countries as customary rules ( Nicaragua v United States of America [1986] ICJ Reports 14).

3.4 International customs

Though custom is referred to as a main source of international law, for that to be considered as international law there need to have one specific emphasis plus opinio juris sive necessitatis or acceptance of such practice as obligatory. Firstly such a practice must be consistent in states and states need to certain that such practice is necessary as a legal obligation. At times even comity has been considered as international law for example diplomatic immunity. Customary international law is different from this with the presence of opinio juris (United Kingdom v Iceland [1974] ICJ Reports 3) . Most customary international laws have been replaced by treaties.

3.5 Significance

Most treaties aim to give international acclaim to customary laws and thus it can be seen that customary laws has contributed largely to international law. For a customary practice is considered as international law according to occasion or when the statement is made ( Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands [1969] ICJ Reports 4). In some situations such a statement of a state is merely considered as a conduct that is necessary in a specific situation. When such a practice is regular, consistent, common and concordant it is considered as law internationally ( Colombia v Peru [1950] ICJ Rep 266). All states that are affected by such a practice need to have participation in sufficient degree ( Portugal v India [1960] ICJ Reports 6) and any substantial dissent must not be present ( Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands ) [1969] ICJ Reports 4). International Court of Justice has rejected the existence of customary practices in the absence of consistency of practice. If state accepts the rule as applicable, then also it becomes a law ( United Kingdom v Norway [1951] ICJ Reports 116). Concept of instant custom is accepted by International Court of Justice and time constrained is not accepted as a bar ( Libyan Arab Jamahiriya v Malta [1985] ICJ Reports 13).

3.5.1 Contribution

International customs have brought the aspect of opinion juris to international law as a necessary condition and it can not be presumed. Even if some acts lacks opinio juris they are considered as customary international law example usage of nuclear weapons, though it was not used after 1945. Another important factor is jus cogens (compelling law) and this is considered as an important factor to override other sources of international law. Importance of this concept is mentioned in Article 53 of Vienna Convention on the Law of Treaties. According to that

“For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

Customs have helped to bring common practices with legal acceptance to international law and thus made international law simple and acceptable to all.

3.6 General principles of law

Though Article (1) of the Statute of International Court of Justice has not mentioned the scope of this and there is controversy in this regard, it is considered that those principles that are applicable to several countries are to be considered as international law. If there is any limit or gap in any other source of international law Court can make use of general principles of law to fill that gap and thus prevent any non liquet. But not all general principles of law are considered as international law. It is necessary that such law has a relation with international officials or organizations employing them (Amerasinghe, 1994).

3.6.1 Significance

With increased number of treaties and conventions importance of general principles of law have reduced to a great extent. But certain concepts like equity and estoppel ( Cambodia v Thailand [1962] ICJ Reports 6) are employed in international dispute adjudication. According to International Court of Justice “[o]ne of the basic principles governing the creation and performance of legal obligations” ( Australia v France; New Zealand v France [1974] ICJ Reports 253) is the principle of good faith. Equity is also referred by the court as a necessity frequently ( Netherlands v Belgium PCIJ Reports Series A/B No 70 76 at 76). It is said that legal rules cannot be subverted by using equity and this means that equity can not operate as contra legem ( Burkina Faso v Republic of Mali [1986] ICJ Reports 554) . United Nations Convention on the Law of the Sea, 1982 reinforces the perception of equity as law but it is the discretion of adjudicator basically. General rules of laws are to be considered as a source of inspiration rather than law itself to be applied directly ( International Status of South-West Africa, 1950).

3.7 Judicial decisions and juristic writings

Article 38(1) (d) of the Statute of International Court of Justice states that

“Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”.

It is not easy to describe the influence these materials posses for international law’s development. But it is to be notes that most pleadings before International Court of Justice are stuffed with legal literature and case laws.

3.7.1 Judicial decisions

Decisions of municipal and international courts and academic papers are not to be considered as law as such or its source, but they are to be used as means for recognizing various laws that are established in various other sources. Though International Court of Justice invokes its previous rulings and judgments it does not refer to decisions made by domestic courts. This is because in international law there is no stare devises rule. A decision made by International Court of Justice is binding only on parties and it is only with respect to that particular case that such a decision is binding (Statute of the International Court of Justice, 1946). But court often refers to its past decision to support and explain its present case. Resolutions of General Assembly are often considered by International Court of Justice as an analytic of customary international law.

3.7.2 Juristic writings

According to Article 38(1) (d) of the Statute of International Court of Justice

“Teachings of the most highly qualified publicists of the various nations are subsidiary means for the determination of the rules of law”.

Though scholarly papers of prominent jurists are not considered as international law sources theya re necessary for developing rules of treaties, general principles of law and customs. This is why such works are also mentioned as source of international law. Such papers are often used for interpreting international law and same method was made use of by Supreme Court of United States in the case of Paquete Habana [175 US (1900) 677 at 700-1].

3.8 WTO and GATT

WTO and GATT have very significant roles to play in international laws. It was with the formation and development of World Trace Organization in 1995 that fair trading practices became important in trade between countries. WTO does not have specific rules governing trade among nations, but such rules are found in treaties that are annexed to Marrakesh Agreement. Thus WTO provides specific framework for administration and implementation of trade agreements. It also creates a form for negotiation, facilitates review mechanism for trade policies and at the same promote among members greater coherence in economic policies. WHO envisages the principles of non discrimination, market access, balancing of trade liberalization along with other social interests and national regulations harmonization through agreements like TBT, SPS and TRIPS? GATT at the same time deals with issues of subsidies and dumping rules of unfair trade practices. Thus WTO along with GATT have made trade between nations a fair activity and thus contributed to international law (van den Bossche, 2008).

4. Conclusion

International law is not a law drafted and adopted by international community. It is derived from various sources like treaties customary laws, general principles of law, judicial decisions and writings WTO and GATT. Several matters ranging from human rights to fair trade and nuclear weapons are considered in this and every new treaty signed by countries make new contribution to international law. It is through these sources that such vast area of dealings is covered in international law. It is not possible to draft laws in all areas that are likely to affect international community and hence the only possible and successful method is to adopt laws from these sources. As relation between countries is mostly set through treaties, they are considered as most important source. At the same time most treaties are extension of customary laws and thus customary laws also plays significant role in development and growth of international law. As trade is the most important issue dealt by international law any new treaty or rule adopted by GATT or WTO will also form a source for international law with regard to practices of trade.

Amerasinghe, C (1994) The Law of the International Civil Service. Oxford: Clarendon Press Australia v France; New Zealand v France [1974] ICJ Reports 253

Burkina Faso v Republic of Mali [1986] ICJ Reports 554

Cambodia v Thailand [1962] ICJ Reports 6

Colombia v Peru [1950] ICJ Rep 266

D’Amato, A (1971) The Concept of Custom in International Law. New York: Cornell University Press

Degan, V, D (1997) Sources of International Law. Netherlands: Kluwer Law International. Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands ) [1969] ICJ Reports 4

Hoof, G, J, H (1983) Rethinking Sources International Law. Hingham: Kluwer Academic publishers

International Status of South-West Africa (Advisory Opinion) [1950] ICJ Reports 128

Libyan Arab Jamahiriya v Malta [1985] ICJ Reports 13

Netherlands v Belgium PCIJ Reports Series A/B No 70 76 at 76

Nicaragua v United States of America [1986] ICJ Reports 14

Portugal v India [1960] ICJ Reports 6

Schreuer, C (nd) Sources of International Law: Scope and Application. [Online] Available at: http://www.univie.ac.at/intlaw/wordpress/pdf/59_sources.pdf. Accessed on February 22nd 2013.

Statute of the International Court of Justice, 1946

Thirlway, H (1972) International Customary Law and its Codification. Leiden: A. W. Sijthoff

United Kingdom v Iceland [1974] ICJ Reports 3

United Kingdom v Norway [1951] ICJ Reports 116

Van den Bossche, P (2008). The Law and Policy of the World Trade Organization – Text, Cases and Materials . Maastricht University: Cambridge University Press.

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international law

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• Table Of Contents

international law , the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term was coined by the English philosopher Jeremy Bentham (1748–1832).

The nature and development of international law

According to Bentham’s classic definition, international law is a collection of rules governing relations between states. It is a mark of how far international law has evolved that this original definition omits individuals and international organizations —two of the most dynamic and vital elements of modern international law. Furthermore, it is no longer accurate to view international law as simply a collection of rules; rather, it is a rapidly developing complex of rules and influential—though not directly binding—principles, practices, and assertions coupled with increasingly sophisticated structures and processes. In its broadest sense, international law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to international actors—i.e., primarily sovereign states but also increasingly international organizations and some individuals. The range of subjects and actors directly concerned with international law has widened considerably, moving beyond the classical questions of war , peace, and diplomacy to include human rights , economic and trade issues, space law , and international organizations. Although international law is a legal order and not an ethical one, it has been influenced significantly by ethical principles and concerns, particularly in the sphere of human rights.

International law is distinct from international comity, which comprises legally nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of the flags of foreign warships at sea). In addition, the study of international law, or public international law, is distinguished from the field of conflict of laws , or private international law , which is concerned with the rules of municipal law—as international lawyers term the domestic law of states—of different countries where foreign elements are involved.

International law is an independent system of law existing outside the legal orders of particular states. It differs from domestic legal systems in a number of respects. For example, although the United Nations (UN) General Assembly, which consists of representatives of some 190 countries, has the outward appearances of a legislature, it has no power to issue binding laws. Rather, its resolutions serve only as recommendations—except in specific cases and for certain purposes within the UN system, such as determining the UN budget, admitting new members of the UN, and, with the involvement of the Security Council , electing new judges to the International Court of Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction in international law. The ICJ’s jurisdiction in contentious cases is founded upon the consent of the particular states involved. There is no international police force or comprehensive system of law enforcement, and there also is no supreme executive authority. The UN Security Council may authorize the use of force to compel states to comply with its decisions, but only in specific and limited circumstances; essentially, there must be a prior act of aggression or the threat of such an act. Moreover, any such enforcement action can be vetoed by any of the council’s five permanent members (China, France, Russia, the United Kingdom, and the United States). Because there is no standing UN military, the forces involved must be assembled from member states on an ad hoc basis.

International law is a distinctive part of the general structure of international relations . In contemplating responses to a particular international situation, states usually consider relevant international laws. Although considerable attention is invariably focused on violations of international law, states generally are careful to ensure that their actions conform to the rules and principles of international law, because acting otherwise would be regarded negatively by the international community . The rules of international law are rarely enforced by military means or even by the use of economic sanctions . Instead, the system is sustained by reciprocity or a sense of enlightened self-interest. States that breach international rules suffer a decline in credibility that may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its advantage may induce other states to breach other treaties and thereby cause harm to the original violator. Furthermore, it is generally realized that consistent rule violations would jeopardize the value that the system brings to the community of states, international organizations, and other actors. This value consists in the certainty, predictability, and sense of common purpose in international affairs that derives from the existence of a set of rules accepted by all international actors. International law also provides a framework and a set of procedures for international interaction, as well as a common set of concepts for understanding it.

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International Law and Justice

Among the greatest achievements of the United Nations is the development of a body of international law, which is central to promoting economic and social development, as well as to advancing international peace and security. The international law is enshrined in conventions, treaties and standards. Many of the treaties brought about by the United Nations form the basis of the law that governs relations among nations. While the work of the UN in this area does not always receive attention, it has a daily impact on the lives of people everywhere. 

The  Charter  of the United Nations specifically calls on the Organization to help in the settlement of international disputes by peaceful means, including arbitration and judicial settlement ( Article 33 ), and to encourage the progressive development of international law and its codification ( Article 13 ).

Over the years, more than  560 multilateral treaties  have been  deposited with the UN Secretary-General . Many other treaties are deposited with governments or other entities. The treaties cover a broad range of subject matters such as human rights, disarmament and protection of the environment.

The General Assembly as a forum for adopting multilateral treaties

The General Assembly  is composed of representatives from each UN Member State and is the main deliberative body on matters relating to international law. Many multilateral treaties are in fact adopted by the General Assembly and subsequently opened for signature and ratification. The Legal (Sixth) Committee  assists the work of the General Assembly by providing advice on substantive legal matters. The Committee is also made up of representatives from all UN Member States.

The General Assembly has adopted several multilateral treaties throughout its history, including: 

• Convention on the Prevention and Punishment of the Crime of Genocide (1948)
• International Convention on the Elimination of All Forms of Racial Discrimination (1965)
• International Covenant on Civil and Political Rights (1966)
• International Covenant on Economic, Social and Cultural Rights (1966)
• Convention on the Elimination of All Forms of Discrimination against Women (1979)
• United Nations Convention on the Law of the Sea (1982)
• Convention on the Rights of the Child (1989)
• Comprehensive Nuclear-Test-Ban Treaty (1996)
• International Convention for the Suppression of the Financing of Terrorism (1999)
• International Convention for the Suppression of Acts of Nuclear Terrorism (2005)
• Convention on the Rights of Persons with Disabilities (2006)
• United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2008)
• Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008)

In many areas, the legal work of the United Nations has been pioneering, addressing problems as they take on an international dimension. The UN has been at the forefront of efforts to provide a legal framework in such areas as protecting the environment, regulating migrant labour, curbing drug trafficking and combating terrorism. This work continues today, as international law assumes a more central role across a wider spectrum of issues, including human rights law and international humanitarian law.

To encourage Member States to sign conventions or deposit binding instruments concerning these treaties, the United Nations hosts annual , as well as special Treaty Events. The Treaty Event of 2023 focused on promoting universal participation in multilateral environmental agreements for a healthier planet.

Development and codification of international law

International law commission.

The International Law Commission  was established by the General Assembly in 1947 to promote the progressive development of international law and its codification. The Commission is composed of 34 members who collectively represent the world's principal legal systems, and serve as experts in their individual capacity, not as representatives of their governments. They address issues relevant to the regulation of relations among states, and frequently consult with the International Committee of the Red Cross, the International Court of Justice and UN specialized agencies, depending on the subject. Often, the Commission also prepares drafts on aspects of international law.

Some topics are chosen by the Commission, others are referred to it by the General Assembly. When the Commission completes work on a topic, the General Assembly sometimes convenes an international conference of plenipotentiaries to incorporate the draft into a convention. The convention is then opened to states to become parties — meaning that such countries formally agree to be bound by its provisions. Some of these conventions form the very foundation of the law governing relations among states. Examples include:

• Convention on the Non-navigational Uses of International Watercourses, adopted by the General Assembly in 1997 ;
• Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted at a conference in Vienna in 1986 ;
• Convention on the Succession of States in Respect of State Property, Archives and Debts, adopted at a conference in Vienna in 1983 ;
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly in 1973 .

International humanitarian law

International humanitarian law encompasses the principles and rules that regulate the means and methods of warfare, as well as the humanitarian protection of civilian populations, sick and wounded combatants, and prisoners of war. Major instruments include the  1949 Geneva Convention for the Protection of War Victims  and two additional protocols concluded in 1977 under the auspices of the International Committee of the Red Cross.

The United Nations has taken a leading role in efforts to advance international humanitarian law. The Security Council has become increasingly involved in protecting civilians in armed conflict, promoting human rights and protecting children in wars . 

Judicial settlement of disputes

• International Court of Justice

The primary United Nations organ for the settlement of disputes is the  International Court of Justice . Also known as the World Court, it was founded in 1946. Since its founding, the Court has considered over 190  cases , issued numerous judgments and issued advisory opinions in response to requests by UN organizations. Most cases have been dealt with by the full Court, but some have been referred to special chambers at the request of the parties. 

In its judgments, the Court has addressed international disputes involving economic rights, rights of passage, the non-use of force, non-interference in the internal affairs of states, diplomatic relations, hostage-taking, the right of asylum and nationality. States bring such disputes before the Court in search of an impartial solution to their differences based on law. By achieving peaceful settlement on such questions as land frontiers, maritime boundaries and territorial sovereignty, the Court has often helped to prevent the escalation of disputes.

International Criminal Justice

The international community had long aspired to create a permanent international court to try the most serious international crimes, and, in the 20th century, it reached consensus on definitions of genocide , crimes against humanity and war crimes.

After the Second World War, the Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.

The ad hoc tribunals and UN-assisted tribunals have contributed to combating impunity and promoting accountability for the most serious crimes. In the 1990s, after the end of the Cold War, the  International Criminal Tribunals for the former Yugoslavia (ICTY)  (1993-2017) and  for Rwanda (ICTR)  (1994-2015) were established to try crimes committed within a specific time-frame and during a specific conflict. This applies, as well, to three courts established by the states concerned, but with substantial UN support: the  Special Court for Sierra Leone  (2002-2013), the  Extraordinary Chambers in the Courts of Cambodia  (2006-2022) and the Special Tribunal for Lebanon (2007-2023). They are non-permanent institutions, which cease to exist once all their cases are heard. Except for the Special Tribunal for Lebanon, which completed its work on 31 December 2023, the rest are now in residual mode – carrying out essential functions after the completion of their mandates. The residual functions for the ICTY and ICTR are carried out by the  Mechanism for International Criminal Tribunals . 

The International Criminal Court

The idea of a permanent international court to prosecute crimes against humanity was first considered at the United Nations in the context of the adoption of the Genocide Convention of 1948. For many years, differences of opinions forestalled further developments. In 1992, the General Assembly directed the International Law Commission to prepare a draft statute for such a court. The massacres in Cambodia, the former Yugoslavia and Rwanda made the need for it even more urgent.

The International Criminal Court (ICC)  has jurisdiction to prosecute individuals who commit genocide, war crimes and crimes against humanity. It will also have jurisdiction over the crime of aggression when an agreement is reached on the definition of such a crime. The ICC is legally and functionally independent from the United Nations, and is not a part of the UN system.

The cooperation between the UN and the ICC is governed by a Negotiated Relationship Agreement. The Security Council can initiate proceedings before the ICC, and can refer to the ICC situations that would not otherwise fall under the Court’s jurisdiction. The Court has 18 judges, elected by the states parties for a term limited to nine years, except that a judge shall remain in office to complete any trial or appeal which has already begun. No two judges can be from the same country.

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Beyond Intractability

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By Eric Brahm

September 2003  

International law has emerged from an effort to deal with conflict among states, since rules provide order and help to mitigate destructive conflict. It is developed in a number of ways. First, law often comes out of international agreements and treaties between states. Treaties are the most important source of international law and also serve as the origins of IGOs, which in turn are important sources of law. Second, customary practices that have evolved over time often become codified in law. Third, general legal principles that are common to a significant number of states can become part of the corpus of international law. Finally, law arises from the community of international legal scholars. Particularly on more technical issues, their expertise is often accepted by political leaders.

The existence of law, however, does not mean that conflict is any easier to resolve.[1] Instead, as law becomes more elaborate and constraining, it becomes increasingly contentious. The powerful do not wish to be constrained in their ability to respond to threats. At the same time, developing countries see much of international law as being crafted largely without their input, primarily due to the so-called democratic deficit in intergovernmental organizations ( IGOs ), which now are typically the negotiating venues for the creation of new law.

In this essay, we discuss the origins of international law, and analyze how international law has evolved in the twentieth century, focusing on the individualization of international law. Finally, we examine some of the contemporary criticisms of international law.

Is International Law Real Law?

Perhaps the first question to ask is whether in fact international law is law at all. The primary distinction between domestic and international law is that the latter often lacks an enforcement mechanism. There is no government to enforce the law, as there is in domestic situations. International law is often as much a source of conflict as it is a solution to them. Most forms of international law are contested. Rarely is it agreed upon universally. As will be seen below, it is not enforceable unless powerful countries see it in their interest to do so. What is more, cross-cultural differences make its interpretation and implementation difficult. Another question is whether international laws can be considered law if they are not translated into domestic laws where there is greater potential for enforcement. By adapting international law into domestic statutes, governments theoretically provide enforcement mechanisms . There are also instances in which domestic law not only does not contain international law, but is in fact in contradiction to it.

Despite all of this, international law is often followed. This can be attributed in part to Great Power backing, but also much of international law is based on customary practice. International law may be enforced by states taking unilateral action if it is in their interest or through multilateral measures where sufficient consensus exists. Reciprocity can play a role, as benefits in other areas may be gained from following laws. In addition to ad hoc efforts to enforce international laws, a number of formal courts have been established for that purpose.

International Courts

Historical origins.

It can be argued that international law began in 1648 with the Peace of Westphalia, which asserted the sovereign equality of states. Rules concerning the conduct of war ( jus ad bellum and jus in bello ) soon emerged, most famously codified in the Geneva Conventions of the nineteenth and twentieth centuries. Organizations soon emerged to facilitate the creation of law and to mediate disputes. The League of Nations sought unsuccessfully to effectively outlaw war. Recently, the clearest source of international law has been the United Nations. The U.N. Charter defines the conditions for the legal use of force, and the U.N. has served as the principal negotiating venue for the creation of new international law. The most recent development has been international law targeting individuals rather than states, as is evidenced by the creation of the International Criminal Court. These issues will be taken up after a review of state-oriented courts.

The International Court of Justice

States have created an evolving collection of international institutions to facilitate the creation and maintenance of international law. The Hague Conference of 1899 established the Permanent Court of Arbitration, which was an institution to which states could come for dispute settlement. It was a forerunner to the Permanent Court of International Justice, created in the aftermath of World War I in 1921. It derived largely from the Treaty of Versailles, and laid the groundwork for the protection of minority rights . The Permanent Court of International Justice was reconstituted in 1946 as the International Court of Justice (ICJ), which is still in existence.

The ICJ was created as a judicial body to hear cases involving disputes between nation-states. It is made up of 15 judges, elected for nine-year terms. The judges are elected by the U.N. General Assembly and Security Council, based on nominations made to the Secretary-General. In order for the ICJ to hear a case, all state parties to the dispute must accept its jurisdiction. The ICJ remained marginal until the 1980s as the Soviet bloc rejected it, and Third World states soured on the idea after some early unfavorable rulings. After the ICJ ruled against the U.S. in the case brought by Nicaragua regarding the mining of Nicaraguan waters, however, it gained renewed credibility, the number of states recognizing its jurisdiction jumped dramatically, and its docket was flooded with cases.[2]

European Courts

Europe has seen the most dramatic development of supranational courts. The European Court of Justice is the sole judicial organ for the European Union. It is independent in its decision-making, and its purpose is to ensure that European law is followed. The court's independence is enhanced by the fact that only one judgment of the court is released, not individual positions. The Court is generally regarded as one of the most "European-minded" institutions in the E.U., in other words acting on the principles articulated for the E.U., rather than on state interests.[3] The European Court of Human Rights has been the most active of any international human rights court, with individuals utilizing it more to assert rights than in the resolution of interstate disputes.

The Inter-American Court of Human Rights

The Americas have also developed a significant regional court system. The Inter-American Court of Human Rights was established in the 1970s and has acted primarily as an advisory body; it has never heard a case. At times, it has been criticized as a tool for the United States to wield influence over its neighbors. However, it has also proven to be an important moral voice in the region, particularly as Latin American states have struggled with political transitions.

International Law and Conflict Management

States have long relied on treaties and other international agreements for security against war. The first important move beyond laws of war was the Kellogg-Briand Pact, signed by 63 countries in 1928, which condemned "recourse to war for the solution of international controversies" and foreswore war as an instrument of policy. However, the conflicts of the 1930s made this agreement moot.

Many of the core principles of international law related to conflict prevention have been incorporated into the U.N. Charter. They are:

• the prohibition of the use of force unless in self-defense [Article 2(4)];
• the primacy of national sovereignty [Article 2(7)], and
• the advancement of human rights [Universal Declaration of Human Rights].

These principles often prove to be in tension with one another, however. This confusion was exacerbated by subsequent treaties, such as the 1948 convention for the Prevention and Punishment of the Crime of Genocide. In practice, the protection of human rights has placed limitations on respecting state sovereignty, and force has been deemed the only effective means to protect human rights on a number of occasions.

One of the clearest appeals to international law emerged with respect to Iraq's 1990 invasion of Kuwait. The Iraqi invasion was a clear violation of Kuwaiti sovereignty, and the ensuing Gulf War was a multilateral effort to enforce international law. The growing role of international law can be seen in the creation of the "no-fly zones" in Iraq via U.N. Security Council Resolution 688 of April 1991, which served as the legal precedent for a range of initiatives later in the decade, from Somalia to East Timor.

Initially, these actions were rationalized by arguing that internal conflict had effects that spilled across borders, but human rights discourse increasingly replaced this argument.[4] These principles of state sovereignty and human rights came into clear conflict in the war in the Balkans. Yugoslavia responded in part to Western threats by making appeals to international law. Yugoslavia sued the NATO countries in the International Court of Justice for aggression and genocide. The Court rejected the argument, but the legality of the Kosovo bombing remains uncertain.[5]

The question of terrorism has also become a difficult one for states to deal with using international law, particularly as targets become increasingly international. Some steps have been taken to address these issues. A number of conventions have been created to deal with issues ranging from aircraft hijacking to hostage-taking and abductions, but all suffer from lack of enforcement. Part of the difficulty in dealing with terrorism is a general lack of consensus over what groups and tactics would fall under such law. The law, however, still largely reflects an overly state-centric view that makes it difficult to deal with the growth of transnational groups. Taking action against groups often requires infringing on sovereignty, another core principle of international law.

Individualization of International Law

One of the most dramatic developments in international law has been the growth of laws focusing on the individual, which provide protection and require accountability. Whereas in the past, international law focused primarily on regulating state behavior and defining states rights, it has increasingly been involved in identifying individual rights and holding individuals accountable. This trend began after WWII. The identification of individual responsibility in the Nuremberg Trials after World War II was followed by the creation of the Universal Declaration of Human Rights by the United Nations. The Declaration passed largely because the Communist Bloc was abstaining at the time. In the years that have followed, there has been a proliferation of international covenants that have specified additional rights. The Yugoslav and Rwandan war crimes tribunals established by the U.N. in the 1990s, the International Criminal Court (ICC), and international covenants specifying additional rights, represent further developments.

Of the two war crimes tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has received the most attention. The ICTY initially suffered because it pursued only low-level criminals, assuming that peace negotiations required the participation of high-level leaders. Yet in mid-1995 Prosecutor Richard Goldstone indicted Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. The peace talks continued, and the former leaders became increasingly marginalized,[6] although they remain at large. States have often been reluctant to aggressively go after war criminals if their soldiers would be placed in harm's way.[7] The ICTY became more aggressive when it indicted Slobodan Milosevic, a sitting head of state, in May 1999 for crimes against humanity.

The International Criminal Court (ICC)

The events of the 1990s, and the perceived strengths and weaknesses of the ICTY, did much to draw renewed attention to the idea of a global criminal court. The forerunner of the ICC was modeled on programs such as the United Nations War Crimes Commission, which was established by the Allies in 1943. In the post-war years, the idea of a permanent court was much talked about, but was overshadowed by the Cold War and reemerged only in 1989 initially as a means to deal with the international drug trade. Both the ICTY and ICTR (International Criminal Tribunal for Rwanda) pointed to the need for a permanent body that would be a stronger deterrent and also could be more efficient, since the cost of a standing body could be less than the start-up costs of ad hoc bodies.

In late 1995, the U.N. General Assembly created the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom), which held a series of sessions over the next three years. Intense diplomatic activity ensued, culminating in a June-July 1998 diplomatic conference that resulted in the Rome Statute of the International Criminal Court. Jurisdiction over genocide , crimes against humanity, war crimes, and aggression was granted the ICC, although the latter crime awaits further diplomatic clarification. The statute entered into force in 2002 after the ratification by the requisite 60 countries. In early 2003, the judges and the Prosecutor were elected. Judges must be nationals of one of the State Parties (states that signed and ratified the agreement) and possess legal expertise. The judiciary must be balanced in a number of respects, representing: the major legal systems of the world; geographic areas; gender; and expertise on specific issues. The 18 judges are elected by the Assembly of States Parties and serve a single nine-year term. The Prosecutor and Deputy Prosecutor(s) are elected by an absolute majority of the Assembly of States Parties for a single nine-year term. Procedures have also been established for the early removal of judges and prosecutors, to ensure accountability.

Bringing a case before the ICC is a relatively long process. For the ICC to act, jurisdiction must be accepted by either the state where the crime was committed, or the state from which the accused came. If ICC jurisdiction exists, investigations may be initiated in a number of ways. A state-party can bring a case. The U.N. Security Council also can, even in circumstances where the jurisdiction outlined above does not exist. In addition, the Prosecutor may also initiate the process him or herself, although the Pre-Trial Chamber must approve of any investigation initiated by the Prosecutor by finding that there is a reasonable basis to proceed and that the case falls within ICC jurisdiction.

What is more, the ICC is meant to be complementary to national courts. Therefore, the ICC will not proceed if a State is or has been investigating the crime, unless the State is seen to be unwilling or unable to proceed. The ICC Prosecutor must notify all states that it is initiating an investigation, and states are able to assert a superior right to exercise jurisdiction. The U.N. Security Council can block proceedings through a positive resolution, but this prohibition lasts for only one year. Once a case has been initiated, the Prosecutor evaluates whether to proceed with the investigation. It is the job of the Pre-Trial Chamber to determine whether to issue warrants and orders requested by the Prosecutor. If the warrant is issued, after the accused has been informed of the charges against him or her, the Pre-Trial Chamber determines whether to confirm the charges. The trial would proceed from there.

The strength of the ICC remains to be proven, particularly since the U.S. does not support the court. The U.S. is concerned that its troops on peacekeeping missions would be subject to prosecution that might be politically motivated. The U.S. would also like the Prosecutor to have less independent authority, and more control exercised by the Security Council, where the U.S. has veto power. Other countries may have similar misgivings, but may lack the international influence to take a decisive stand. They may fear the potential embarrassment of having their human rights records put on trial. Leaders who have violated the human rights of their citizens or others may fear prosecution. The U.S. case remains somewhat unique since it has the largest military in the world and tends to be involved in more places more frequently. It also reflects a concern for entangling international obligations that has been an undercurrent of U.S. foreign policy for much of its history. In essence, the U.S. is reluctant to give up the ability to act in its self-interest that its power provides.

Critiques of International Law

Although much of this discussion has portrayed international law as a potential means of conflict management or resolution, it should be remembered that law is itself a source of significant conflict. The shape and content of law often favors particular groups or countries. Not only is international law often most influential when it favors the strongest, but the powerful are also typically the source of law. For example, because much of international law is formed by the U.N., the Security Council has a disproportionate influence in shaping it.

One prominent example of might makes right in international law is in the realm of laws related to trade and investment. Enforcement comes largely through power, which means that the developed world often controls the agenda. They have the market power to punish and entice smaller states to comply. The creation of the World Trade Organization (WTO) in 1995 marked a dramatic advancement in the development of trade law and enforcement mechanisms over what existed under the General Agreement on Tariffs and Trade (GATT). The WTO has been widely criticized for "green room"[8] agenda-setting by the global North, and other actions that put the South at a disadvantage.[9] New laws also create significant administrative burden for poor states, which is perhaps not bad for the long run, but makes for costly compliance.[10]

At base, though, law is only as effective as the means of enforcement and developing countries lack the power to retaliate effectively. Trade law is branching out into new areas as well, which will potentially put the South at an even greater disadvantage. Efforts are in various stages to link trade law to a range of issues from intellectual property regulations (TRIPs) to the environment to labor standards. TRIPs appear to favor Northern multinational corporations, while not protecting indigenous knowledge.[11] It also promises to make the cost of drugs to fight deadly illnesses such as AIDS a severe burden for poor countries. In terms of environmental law, it is often seen by the South as cutting off the path to development that the North took long ago, leaving the South in permanent dependency.

At the same time, the WTO's Dispute Settlement Understanding does take many steps to help developing countries operate on equal footing, compared to the GATT.[12] Each case must have a representative from the South as one of the three hearing the case. Voting is more explicit than under the GATT. Provisions have also been made to provide expertise to delegations from the South, but they are still left unable to shape the agenda. In sum, the WTO Dispute Settlement System does provide better opportunity for developing countries to bring complaints, but they often lack the technical expertise to take advantage of it.

International law has also been criticized as fundamentally Western. Certainly, most international law is based on Western notions. One sign of this might be that the Western Countries are more compliant with the international laws on human rights.[13] Others argue, however, that the widespread acceptance of international law is evidence that the principles on which it is based are not strictly Western. Still, it is not clear that many developing countries are entirely free to accede to these rules, as the WTO example above suggests. Western countries are able to provide incentives for less powerful countries to accede to their wishes. Either way, however, it means that international law has at least some force behind it, though not nearly as much as domestic legal systems.

[1] William A. Schabas, "International Law and Response to Conflict," in Turbulent Peace: The Challenges of Managing International Conflict , eds. Chester A. Crocker, Fen Osler Hampson, and Pamela Aall (Washington, D.C.: United States Institute of Peace Press, 2001), 603-618. < http://www.amazon.com/Turbulent-Peace-Challenges-Managing-International/dp/1929223277 >.

[3] Trevor C. Hartley, The Foundations of European Community Law, Third Edition (New York: Oxford University Press, 1994). Access revised edition (2010) here.

[4] Schabas 2001.

[5] Ibid, 607.

[7] Gary Jonathan Bass, Stay the Hand of Vengeance : The Politics of War Crimes Tribunals Princeton, N.J.: Princeton University Press, 2000). < http://books.google.com/books?id=M3XeD1OvxRYC >.

[8] So called green room deals refer to pre-negotiation meetings of representatives of developed countries in which they agree to a position for negotiations involving the broader international community. Given their power and influence, they are then able to present a unified front in negotiations with developing countries and therefore shape the debate such to favor their interests.

[9] Sarah Anderson, ed., Views from the South: The Effects of Globalization and the WTO on Third World Countries (Chicago: Food First Books, 2000) < http://books.google.com/books?id=fai2AAAAIAAJ >.; Walden Bello, "Reforming the WTO is the Wrong Agenda," in Globalize This!: The Battle Against the World Trade Organization and Corporate Rule, eds. Kevin Danaher and Roger Burback (Monroe, ME: Common Courage Press, 2000) 103-119. < http://books.google.com/books?id=3lRjQgAACAAJ >.

[10] Magda Shahin, From Marrakesh to Singapore: The WTO and Developing Countries. Penang, Malaysia: Third World Network. < http://books.google.com/books?id=CdC2AAAAIAAJ >.

[11]Anderson 2000.

[12] Kofi Oteng Kufuor, "From the GATT to the WTO -- The Developing Countries and the Reform of the Procedures for the Settlement of International Trade Disputes," Journal of World Trade 31, no. 5 (October 1997): 117-147.

[13] Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990). < http://books.google.com/books?id=jxYCBOV1IwwC >.

Use the following to cite this article: Brahm, Eric. "International Law." Beyond Intractability . Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 < http://www.beyondintractability.org/essay/international-law >.

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1 The Importance of International Law

• Published: April 2001
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This chapter discusses that across the board, international law is an important part of the structure of our international society. It adds that states accept it as such, and their record in observing it bears comparison with the level of law observance in many countries. It stresses that international law is a part of the structure for it is an integral part of it and not an optional extra; and that it is but one part in the overall equation — important, but not to the exclusion of other parts. It explains that the importance of international law is a function of its effectiveness and its ability to respond to change. Both, at the present time and for the most part, are adequate, but perhaps only just. It adds that neither can be taken away for granted. It clarifies that both need attention and development within a framework of respect for the international rule of law, if a stable international order is to prevail.

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Essays on International Law

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This book contains ten writings on different aspects of international law, each of them cross-referenced, in instances in which information in one is relevant to points made in another. The first essay considers the character of the subject, and its relation to other entities of relevance to it, such as its compatibility with national law and its relation to maritime law. The second one considers different types of legal instruments in settings of international law, and explains how to read a multilateral convention, using the Convention for the International Sale of Goods as an example. The third part discusses the characteristics of a state and the concept of recognition, the fourth reviews the various roles that institutions take in international law, concentrating in particular on major regional organisations, and the fifth explores the extent to which the World Trade Organisation and the General Agreement on Tariffs and Trade provide for developing countries.

Essay Six summarises the framework for international labour law and investigates its contents and workings, then the seventh considers which countries predominate in the running of international institutions. The eighth paper explores how regional entities might co-operate with international institutions in the harmonisation of the law, and the ninth one investigates the place of negotiation as a method of international dispute resolution. Finally, the tenth essay considers the past, present and future of international law, and reviews especially the role of language.

Graeme Baber is an independent legal researcher, specializing in international, European and United Kingdom financial law. He has published more than 30 articles, comments, briefings and updates across these areas, and his previous books with Cambridge Scholars Publishing include The Impact of Legislation and Regulation on the Freedom of Movement of Capital in Estonia, Poland and Latvia and The Free Movement of Capital and Financial Services: An Exposition? His most recent book is a treatise entitled The European Union and the Global Financial Crisis: A View from 2016 (Nova Science Publishers). Graeme is an experienced teacher of university students, lecturing on both financial law and international law.

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ISBN: 1-4438-4378-4

ISBN13: 978-1-4438-4378-2

Release Date: 23rd December 2016

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Home — Essay Samples — Law, Crime & Punishment — Judiciary — International Law

Essays on International Law

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Status of Refugees in The Eyes of International Law

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The Principles of International Law

Jeremy bentham, objects of international law..

If a citizen of the world had to prepare an universal international code, what would he propose to himself as his object? It would be the common and equal utility of all nations: this would be his inclination and his duty. Would or would not the duty of a particular legislator, acting for one particular nation, be the same with that of the citizen of the world? That moderation, which would be a virtue in an individual acting for his own interests, would it become a vice, or treason, in a public man commissioned by a whole nation? Would it be sufficient for him to pursue in a strict or generous manner their interests as he would pursue his own?---or would it be proper, that he should pursue their interests as he would pursue his own, or ought he so to regulate his course in this respect as they would regulate theirs, were it possible for them to act with a full knowledge of all circumstances? And in this latter case, would the course he would pursue be unjust or equitable? What ought to be required of him in this respect?

Whatever he may think upon these questions---how small soever may be the regard which it may be wished that he should have for the common utility, it will not be the less necessary for him to understand it. This will be necessary for him on two accounts: In the first place, that he may follow this object in so far as his particular object is comprised in it;---secondly, that he may frame according to it, the expectations that he ought to entertain, the demands he ought to make upon other nations. For, in conclusion, the line of common utility once drawn, this would be the direction towards which the conduct of all nations would tend---in which their common efforts would find least resistance---in which they would operate with the greatest force---and in which the equilibrium once established, would be maintained with the least difficulty.

Let us take, for example, the famous law with respect to prizes, adopted by so many nations at the suggestion of Catherine II. of Russia. How formidable soever may have been the initiating power, there is no reason to think that it was fear which operated upon so many nations, together so powerful, and some of them so remote: it must have been its equity, that is to say, its common utility, or, what amounts to the same thing, its apparent utility, which determined their acceptance of it. I say real or apparent; for it will be seen that this is not the place to decide without necessity upon a question so delicate and complex.

But ought the sovereign of a state to sacrifice the interests of his subjects for the advantage of foreigners? Why not?---provided it be in a case, if there be such an one, in which it would have been praiseworthy in his subjects to make the sacrifice themselves.

Probity itself, so praiseworthy in an individual, why should it not be so in a whole nation? Praiseworthy in each one, how can it be otherwise in all? It may have been true that Charles the Second did well in selling Dunkirk: he would not have done less well, had he not put the price in his own pocket.

It is the end which determines the means. Here the end changes (or at least appears to change;) it is therefore necessary that the means should change or appear to change also.

The end of the conduct which a sovereign ought to observe relative to his own subjects,---the end of the internal laws of a society,---ought to be the greatest happiness of the society concerned. This is the end which individuals will unite in approving, if they approve of any. It is the straight line---the shortest line---the most natural of all those by which it is possible for a sovereign to direct his course. The end of the conduct he ought to observe towards other men, what ought it to be, judging by the same principle? Shall it again be said, the greatest happiness of his own subjects? Upon this footing, the welfare, the demands of other men, will be as nothing in his eyes: with regard to them, he will have no other object than that of subjecting them to his wishes by all manner of means. He will serve them as he actually serves the beasts, which are used by him as they use the herbs on which they browse---in short, as the ancient Greeks, as the Romans, as all the models of virtue in antiquity, as all the nations with whose history we are acquainted, employed them.

Yet in proceeding in this career, he cannot fail always to experience a certain resistance---resistance similar in its nature and in its cause, if not always in its certainty and efficacy, to that which individuals ought from the first to experience in a more restricted career; so that, from reiterated experience, states ought either to have set themselves to seek out---or at least would have found, their line of least resistance, as individuals of that same society have already found theirs; and this will be the line which represents the greatest and common utility of all nations taken together.

The point of repose will be that in which all the forces find their equilibrium, from which the greatest difficulty would be found in making them to depart.

Hence, in order to regulate his proceedings with regard to other nations, a given sovereign has no other means more adapted to attain his own particular end, than the setting before his eyes the general end---the most extended welfare of all the nations on the earth. So that it happens that this most vast and extended end---this foreign end---will appear, so to speak, to govern and to carry with it the principal, the ultimate end; in such manner, that in order to attain to this, there is no method more sure for a sovereign than so to act, as if he had no other object than to attain to the other;---in the same manner as in its approach to the sun, a satellite has no other course to pursue than that which is taken by the planet which governs it.

For greater simplicity, let us therefore substitute everywhere this object to the other:---and though unhappily there has not yet been any body of law which regulates the conduct of a given nation, in respect to all other nations on every occasion, as if this had been, or say rather, as if this ought to be, the rule,---yet let us do as much as is possible to establish one.

1. The first object of international law for a given nation:---Utility general, in so far as it consists in doing no injury to the other nations respectively, having the regard which is proper to its own well-being.

2. Second object:---Utility general, in so far as it consists in doing the greatest good possible to other nations, saving the regard which is proper to its own well-being.

3. Third object:---Utility general, in as far as it consists in the given nation not receiving any injury from other nations respectively, saving the regard due to the well-being of these same nations.

4. Fourth object:---Utility general, in so far as it consists in such state receiving the greatest possible benefit from all other nations, saving the regard due to the well-being of these nations.

It is to the two former objects that the duties which the given nation ought to recognize may be referred. It is to the two latter that the rights which it ought to claim may be referred. But if these same rights shall in its opinion be violated, in what manner, by what means shall it apply, or seek for satisfaction? There is no other mode but that of war. But war is an evil---it is even the complication of all other evils.

5. Fifth object:---In case of war, make such arrangements, that the least possible evil may be produced, consistent with the acquisition of the good which is sought for.

Expressed in the most general manner, the end that a disinterested legislator upon international law would propose to himself, would therefore be the greatest happiness of all nations taken together.

In resolving this into the most primitive principles, he would follow the same route which he would follow with regard to internal laws. He would set himself to prevent positive international offences---to encourage the practice of positively useful actions.

He would regard as a positive crime every proceeding---every arrangement, by which the given nation should do more evil to foreign nations taken together, whose interests must be affected, than it should do good to itself. For example, the seizing a port which would be of no use except as the means of advantageously attacking a foreign nation;---the closing against other nations, or another nation, the seas and rivers, which are the highways of our globe;---the employing force or fraud for preventing a foreign nation from carrying on commerce with another nation. But by their reciprocity, injuries may compensate one another.

In the same manner, he would regard as a negative offence every determination by which the given nation should refuse to render positive services to a foreign nation, when the rendering of them would produce more good to the last-mentioned nation, than would produce evil to itself. For example if the given nation, without having reason to fear for its own preservation (occupying two countries of which the productions were different,) should obstinately prohibit commerce with them and a foreign nation:---or if when a foreign nation should be visited with misfortune, and require assistance, it should neglect to furnish it:---or, in conclusion, if having in its own power certain malefactors who have malâ fide committed crimes to the prejudice of the foreign nation, it should neglect to do what depends upon it to bring them to justice.

War is, it has been said, a species of procedure by which one nation endeavours to enforce its rights at the expense of another nation. It is the only method to which recourse can be had, when no other method of obtaining satisfaction can be found by complainants, who have no arbitrator between them sufficiently strong, absolutely to take from them all hope of resistance. But if internal procedure be attended by painful ills, international procedure is attended by ills infinitely more painful---in certain respects in point of intensity, commonly in point of duration, and always in point of extent. The counterpart of them will, however, be found in the catalogue of offences against justice.

The laws of peace would therefore be the substantive laws of the international code: the laws of war would be the adjective laws of the same code.

The thread of analogy is now spun; It will be easy to follow it. There are, however, certain differences.

A nation has its property---its honour--and even its condition. It may be attacked in all these particulars, without the individuals who compose it being affected. Will it be said that it has its person? Let us guard against the employment of figures in matter of jurisprudence. Lawyers will borrow them, and turn them into fictions, amidst which all light and common sense will disappear; then mists will rise, amidst the darkness of which they will reap a harvest of false and pernicious consequences.

Among nations, there is no punishment. In general, there is nothing but restitution, to the effect of causing the evil to cease;---rarely, indemnification for the past; because among them there can scarcely be any mauvaise foi . There is but too much of it too often among their chiefs; so that there would be no great evil if, at the close of his career, every conqueror were to end his days upon the rack---if the justice which Thomyris executed upon Cyrus were not deemed more striking, and his head were not thrown into a vessel of blood,---without doubting that the head of Cyrus was most properly thrown there. But however dishonest the intention of their chiefs may be, the subjects are always honest. The nation once bound---and it is the chief which binds it---however criminal the aggression may be, there is properly no other criminal than the chief:---individuals are only his innocent and unfortunate instruments. The extenuation which is drawn from the weight of authority, rises here to the level of an entire exemption.

The suffrages of the principle of antipathy are here found in accord with the principle of utility: on the one part, vengeance wants a suitable object; on the other hand, every punishment would be unnecessary, useless, expensive, and inefficacious.

As to the third and fourth objects, it is scarcely necessary to insist on them:---nations as well as men, sovereigns as well as individuals pay sufficient attention to their own interests---there is scarcely any need to seek to lead them to it. There remain the two first and the last.

To actions by which the conduct of an individual tends to swerve from the end which internal laws ought to propose to themselves, I have given, by way of anticipation, the name of offences:---by a similar anticipation, we may apply the same appellation to actions by which the conduct of a whole nation swerves from the object which international laws ought to propose to themselves.

Among sovereigns, as well as among individuals, there are some offences de bonne foi ; there are others de mauvaise foi . One must be blind to deny the latter---one must be much more sadly blind to deny the other. People sometimes think to prove their discernment by referring everything to the latter head, or to prove it equally by referring everything to the former. It is in this manner they proceed in judging of men, and especially of sovereigns: they grant to them an intelligence without limits, rather than recognise in them a grain of probity; they are believed never to have blushed at folly, provided that it has had malignity for its companion. So much has been said of the injustice of sovereigns, that I could wish a little consideration were given to the still more common injustice of their detractors; who, whilst they preserve their concealment, revenge themselves upon the species in general, for the adulation which in public they lavish upon individuals.

• Uncertainty of the right of succession with regard to vacant thrones claimed by two parties.
• Intestine troubles in neighbouring states. These troubles may also have for their cause an uncertainty of the same kind as the preceding, or a dispute concerning constitutional law in the neighbouring state, either between the sovereign and his subjects, or between different members of the sovereign body.
• Uncertainty with respect to limits, whether actual or ideal. The object of these limits may be to keep separate either goods, or persons, or causes.
• Uncertainty as to the limits of new discoveries made by one party or another.
• Jealousies caused by forced cessions, more or less recent.
• Disputes or wars, from whatsoever cause they may arise, among circumjacent states.
• Religious hatred.

Means of Prevention.

• Homologation of unwritten laws which are considered as established by custom.
• New conventions---new international laws to be made upon all points which remain unascertained; that is to say, upon the greater number of points in which the interests of two states are capable of collision.
• Perfecting the style of the laws of all kinds, whether internal or international. How many wars have there been, which have had for their principal, or even their only cause, no more noble origin than the negligence or inability of a lawyer or a geometrician!

Forward to:  [ Essay 2, The Principles of International Law ] Of Subjects, or of the Personal Extent of the Dominion of the Laws. Up to:  [ Intro and Table of Contents, The Principles of International Law, ]

The Concept of Jurisdiction in International Law Essay

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Introduction

The meaning of jurisdiction, state and federal examples, examples of concurrent jurisdiction.

Understanding jurisdiction is a crucial skill impeded by the multitude of the differences and possibilities of intersection between state and federal laws, making it a challenging endeavor. Discerning the differences, similarities, and inconsistencies among the laws of different levels permits not only engaging with the described requirements through achieving an appropriate level of personal professionalism but also developing adequate critical thinking. Therefore, through defining jurisdiction concepts and the use of examples, it possible to better understand the situation, currently in place in the US system of laws.

Jurisdiction as an official method is choice power that is granted upon those relevant to the selective jurisdictional scope, usually subdivided into the aspects of the whole concept. In the US Constitution, historically, it is Article III that creates the prerequisites to “create a federal judicial system” through the investment of power on a national level (Chemerinsky, 2016, p. 2). Local, state, and federal courts, therefore, can individually carry out punishment for the breaching of their laws with a court for each level of a jurisdictional misdemeanor.

Concurrent jurisdiction occurs when two sections responsible for prescriptive action intersect, either in the case of a conflict of state and federal interests or when differing authorities cross within the same level. An appropriate example of intersection would be a conflict of interests between criminal and economic incidents due to the far-reaching effects of financial malpractice (Ryngaert, 2015). The legal situation is made even more complicated since “besides formal legal rules, there are customary or consensus practices that are also of importance” (Rosenbaum & Schap, 2016, p. 201). This situation creates circumstances where not only different states within the US attain the possibility of declaring concurrent interests but also create prerequisites for differing ways of practicing law.

The state examples of judicial authority could be easily presentable, in the event of situational conditions contained within one US state. Taking a theoretical couple from Idaho as an example, vehicular manslaughter of another state citizen or the previous theft of the car would still retain them to be solely within the scope of Idaho jurisdiction (Idaho Legislature, 2018). Their case could become federal if their actions fell under the competency of the US Constitution or breaching federal laws (Siegel, Schmalleger, & Worrall, 2017).

This level could be achieved by the same Idaho couple if they decided to rob a federal agency insured bank or attempted to bring drugs from Canada into the country, involving the US as a stakeholder. Drug smuggling and the robbery of such capacity immediately make them a responsibility of the federal court.

Concurrent jurisdiction requires a more delicate approach, especially in such cases as harmful environmental conditions that affect people living in specific states, such as the example of California and its drought that made water rights relevant. Effectively, the case consists of “concurrent jurisdiction between the state agency and the state trial court for water rights disputes,” with no possible clarification on whose authority is superior (Wong, 2017, p. 68). While granting this right to the state trial courts would seem natural for dispute claims, it is the state’s agency that has more competencies to deal with the issues that arisen.

Using examples to demonstrate the possibility and existence of state, federal, and concurrent jurisdiction helps solidify the already apperceived knowledge on the matter. Due to the fact that the US is composed of states, concurrent jurisdiction becomes a particularly common issue with different states attempting to claim heightened authority in some matters in opposition to others. Solving these issues becomes possible only through a deep understanding of not only the underlying problems but also the current judicial state of affairs.

Chemerinsky, E. (2016). Federal jurisdiction (7th ed.). New York, NY: Wolters Kluwer.

Idaho Legislature. (2018). Title 18 crimes and punishments. Chapter 40 homicide. Web.

Rosenbaum, D. I., & Schap, D. (2016). Differences among state court jurisdictions in damages calculations. In Frank D. Tinari (Ed.), Forensic Economics (pp. 191-204). New York, NY: Palgrave Macmillan.

Ryngaert, C. (2015). Jurisdiction in international law (2nd ed.). New York, NY: Oxford University Press.

Siegel, L. J., Schmalleger, F., & Worrall, J. L. (2017). Courts and criminal justice in America (3rd ed.). New York, NY: Pearson.

Wong, Z. A. (2017). Exhausted of concurrent jurisdiction: A reexamination of National Audubon v. Superior Court of Alpine County. Washington Journal of Environmental Law & Policy, 7 (1), 65-89.

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Bibliography

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International Law

Definition of international law, what is international law, types of international law, public international law, private international law, supranational law, international criminal law, international law example involving the death penalty, related legal terms and issues.