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Background and Context in International Law

23 Apr, 2017 FOREIGN & INTERNATIONAL LAW

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Background and Context in International Law


BACKGROUND


International law is usually defined as the legal rules, norms, and customs governing the relationship of autonomous states and associations of states. It is different than the law applicable in the various nation states, i.e., internal or domestic law. States are the subjects of international law; individuals, of domestic law.


The primary source of law in international law is the treaties and conventions that contain the legal rules that regulate the subject matter of the treaty or convention in question. The sources of international law also include judgments and advisory opinions from the ICJ.1 In addition to the written law enshrined in treaties and conventions, international law theory also recognizes that binding customary law, i.e., general rules by which all states are bound, may be created as part of international law.


Article 38 of the Statute of the ICJ states that the Court, which decides disputes that are submitted to it in accordance with international law, shall apply:


•international conventions to establish rules expressly recognized by the contesting states;


•international custom, as evidence of a general practice accepted as law;


•the general principles of law recognized by civilized nations;


•judicial decisions and the teachings of the most highly qualified legal experts of various nations, as subsidiary means for the determination of rules of law, subject to the provisions of Article 59.


In contrast to national laws that apply to all citizens of the state, a specific feature of written international law is that treaties and conventions only apply to the states that have signed and ratified the treaty or convention in question or agreed to it (so-called states parties). This is also indirectly implied in the withdrawal provisions found in most treaties and conventions in which a state party has the right to withdraw from the agreement if it no longer wants to be legally bound by the treaty or convention. This may occur when the state decides that extraordinary events, related to the subject matter of the agreement, have jeopardized its most vital interests, for example if another state party has grossly violated the agreement. A treaty or convention is ratified by a state when the state, after signing the agreement, issues its final declaration of commitment to be bound by the agreement. The ratification consists of a written statement signed by the head of state, who usually only signs the so-called instrument of ratification after the national parliament has given its consent.


The reason international law cannot be imposed on all states in the world is that states are sovereign, thus autonomous, subjects of international law and cannot be forced to be bound by certain treaties and conventions which they do not want to sign and ratify or adhere to (i.e., become a state party). That is why a majority of United Nations member states cannot decide, by a simple or qualified majority, to declare, for example, all nuclear weapons, cluster bombs, and anti-personnel mines illegal and destroyed through disarmament. Because they need to protect and defend their sovereignty and territorial integrity, states reserve their right to produce or acquire and possess – and eventually use – the weapons that they consider necessary to avert armed attacks in self-defence and to maintain a deterrent capability so they can acquire or maintain an international position of power.


Like international law in other areas, disarmament law is limited in the sense that it is not formulated by any global legislative authority with binding effect for all states. Nor can disarmament law be executed or enforced against any state that is not a party to the disarmament agreement in question. The only exception to this international legal order is the United Nations Security Council’s ability to adopt legally binding resolutions to maintain or restore international peace and security according to Article 42 of the Charter of the United Nations. Resolutions adopted by the United Nations General Assembly, often referred to as “soft law,” are not legally binding on the United Nations member states, but only political recommendations. In many cases, these include de lege ferenda recommendations, i.e., what the law should be, on how the member states that have proposed and voted for the resolution want a particular conflict resolved or a particular legal regime imposed for a particular area.


International legal theory distinguishes between the international law regulating states’ behaviour in times of peace (jus pacis (the law of peace)), and the law that applies to armed conflict (jus in bello (the law of war)). Disarmament measures that are in accordance with disarmament law in the first place apply in peacetime. Disarmament and arms control agreements are also applicable during armed conflicts.


The law of war that applies to armed conflicts (extensive and continuous fighting) is traditionally divided in two categories, with the following Latin terms:


Jus ad bellum – or the law concerning war – comprises rules on


•the prevention of war,


•the regulation of conditions under which states may resort to war, or


•the use of armed force in general.


The prohibition on the use of force among states and the exceptions to it (self-defence and United Nations authorization for the use of force) are set out in the United Nations Charter.


Jus in bello – or the law of war or law of armed conflict – regulates and restricts the means of warfare – in particular weapons – and the methods of warfare that are lawful, i.e., that regulate the conduct of the parties engaged in an armed conflict. Jus in bello is synonymous with international humanitarian law, which seeks to minimize the suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest possible extent.


JUS AD BELLUM