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What is International Law?
International law has traditionally been the rule of law that applies between states, but today it also includes legal rules in relation to and between international organizations and to some extent also individuals. International law is a separate legal system, and not automatically a part of internal (national) law.
The sources of international law
There is no complete consensus on the philosophy of international law, and thus its sources and use. In the main, however, a positivist method is used, where the most central sources are treaties and customs. In common, then, one focuses on what the legal subjects have consented to, either through contractual agreement or practice.
Treaties are agreements between international law subjects, for example between two or more states (treaties between two states are often referred to as bilateral, while treaties between several are referred to as multilateral). Treaties are basically only binding on participating states. In addition, some treaties aim to enact already existing customary law, or gain such participation that they form the basis of customary law, and thus can become binding also for non-participating states (see, for example, the Convention on the Law of the Sea under sea law).
Customs law is established on the basis of practice and belief that the practice complies with the requirements set by the court. Non-participating legal subjects can also be bound here, but extensive and uniform practice is required. Thus, until the rule is formed, it is possible to prevent passage from practice to customary law by declaring that it contravenes the law, or even stand for dissenting practice. The requirements for education are also adapted to whether the custom is to be of a global nature or whether it is limited to, for example, a region.
In addition to these two main sources, common law principles recognized by all civilized states are also recognized, cf. Articles of Association of the International Court of Justice, Article 38, paragraph 3. They are also mentioned as secondary sources of jurisprudence and international law theory. It is clear that decisions in international organizations can also be important in determining the right.
The importance of international law in practice
International law and international society lack both mandatory legislative authority, mandatory courts and enforced authority. This is sometimes referred to as international law’s lack of vertical structures, and constitutes one of the most obvious differences between international law and most national legal systems. Nevertheless, it is a fact that international law itself is claimed by the states themselves to be binding on them, and really or allegedly perceived by their authorities.
As regards, for example, compliance with agreements, it is strongly suggested that this is just as regular and, of course, between states as between individuals. Something else is that in one case, in the other case, deliberate breaches can occur, and that, when they occur between states, will easily have particularly noticeable and fateful consequences. However, recognizing the inadequacy of international law in such crisis situations should not lead to completely denying its existence.
Content of international law
International law contains rules both for peacetime and for armed conflicts. The first can be said to be one of its most important goals to harmonize international conditions so that armed conflicts are avoided, and include, among other things, attempts to completely prohibit the use of force in international relations without the authorization of the UN Security Council. The rules on armed conflict enter into force if such conflicts nevertheless arise, and are intended to limit the consequences of such conflicts. These rules for armed conflict apply regardless of whether such use of force was permissible under international law, and applies to all parties to the conflict.
The subjects of international law
As members of international law, only in the 19th century were Christian states counted; later all the states in the world have joined. Until World War I, there was also a firm teaching that only states could be subjects of international law, that is, have international rights and obligations. Gradually, it was also opened that organizations such as the League of Nations and the United Nations (UN) as well as various other international organizations could be legal subjects under international law.
The minority treaties after World War I, as well as the Nuremberg Process and the human rights conventions (see human rights) after World War II, have also largely included individuals. At the establishment of the International Criminal Court, there is now a permanent criminal court which condemns the most serious crimes committed by individuals.
The organization of a larger group of independent states in a state society, regulated by international law, is a relatively modern phenomenon. Admittedly, rules of international law can be demonstrated from medieval feudal states, Rome and Greece, or even from older cultural sections of the culture. But a public-law society within the meaning of the term now began to take shape only at the transition from the 16th to the 16th century.
The emergence of a truly international law is not infrequently attributed to the Dutch scholar Hugo Grotius (1583–1645). This is not historically accurate, for Grotius also had his predecessors; Among the most prominent were the Spaniards Francisco de Vitoria (1480–1546) and Albericus Gentilis (1552–1608). But it was Grotius’ forensic activity and, in particular, his main work De Jure Belli ac Pacis (1625) that took on an unparalleled importance as a basis and guidelines for international law.
Grotius and his closest successors, especially the German Samuel von Pufendorf (1632–1694), built on natural law; they derived the rules of international law from a postulated immutable, general human right of higher rank than the positive order of law. This theory of natural law has never been completely eradicated from international law, despite skilled and energetic attempts to build on the positive foundations of state practice, treaties and more.
The end of major wars has often led to attempts to reorganize international affairs. These are important stages in the development of the more politically stressed international law, especially the peace in Westphalia (1648), in Utrecht (1713), the Vienna Congress (1815), the Paris Congress (after the Crimean War, 1856), the Versailles Peace with the League of Nations (1919), and San Francisco conference that created the UN after World War II (1945).
In peacetime, the ever-expanding international economic, social and cultural cooperation has led to a number of important treaties that have created an international law of a more administrative nature, on trade, currency, shipping, aviation, postal, telegraph, aerospace and other social, health, authors ‘and artists’ legal protection, patent protection, goals and emphasis and more. The European Union (EU) is an attempt to achieve the goal of avoiding armed conflict through the establishment of a common internal market with a coordinated regulatory framework.
Significant to the enforcement and development of international law was the establishment of a permanent international court in The Hague in 1921 (reorganized in 1946). The efforts to regulate and humanize warfare resulted primarily in the Hague Conventions of 1899 and 1907, and the Geneva Conventions, of which the present ones are from 1949, with two additional protocols from 1977. Attempts to codify other parts of international law have had mixed success. The League of Nations’ codification conference in The Hague in 1930 produced little results.
In 1982, the protracted negotiation process was completed, and a new Convention on the Law of the Sea saw the light of day, see Sea Law. In 1948, the UN General Assembly adopted a Declaration on Human Rights, which was not binding on the Member States. In addition, a convention on economic, social and cultural rights was adopted in 1966, one on civil and political rights and one on racial discrimination. In 1979, the United Nations adopted a Convention against Women’s Discrimination and in 1989 a Convention on the Rights of the Child. A convention for the protection of human rights was already signed in 1950 by the Western European states (under the auspices of the Council of Europe).
Otherwise, there have been many drafts and unrelenting attempts to express the rules of international law in general texts; both by official bodies such as the International Law Commission during the UN General Assembly, and by private institutions and learned companies such as the International Law Association and the Institut de Droit International. In this connection, mention should also be made of the Académie de droit international de la Haye.