INTERNATIONAL LAW
What is International Law
Stes de Necker
Introduction
International
law is a set of rules generally regarded and accepted as binding in
relations between states and between nations. It serves as a framework for the practice of
stable and organized international relations.
International
law differs from state-based legal systems in that it is primarily applicable to
countries rather than to private citizens. National law may become
international law when treaties delegate national
jurisdiction to supranational tribunals such as the European Court of Human Rights or
the International Criminal Court.
Treaties such as the Geneva Conventions may
require national law to conform to respective parts.
Much of
international law is consent-based governance. This means that a state member
is not obliged to abide by this type of international law, unless it has
expressly consented to a particular course of conduct.
This is
an issue of state sovereignty.
However, other aspects of international law are not consent-based but still are
obligatory upon state and non-state actors such as customary international law and
peremptory norms (jus cogens).
The term
"international law" can refer to three distinct legal disciplines:
Public international law, which governs the relationship
between states and international entities. It includes these legal fields: treaty law, law of sea, international criminal law,
the laws of war or international humanitarian law, international human rights law,
and refugee law.
Private international law, or conflict of laws, which addresses the questions of (1) which
jurisdiction may hear a case, and (2) the law concerning which jurisdiction
applies to the issues in the case.
Supranational law or the law of supranational organizations, which concerns regional agreements
where the laws of nation states may be held inapplicable when conflicting with
a supranational legal system when that nation has a treaty obligation to a supranational collective.
Sources
of International Law
International
law is sourced from decision makers and researchers looking to verify the
substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied
by the community of nations to find the content of international law are listed
under Article 38.1 of the Statute of the
International Court of Justice: Treaties, customs, and general principles are stated as the
three primary sources; and judicial decisions and scholarly writings are
expressly designated as the subsidiary sources of international law.
Many scholars
agree that the fact that the sources are arranged sequentially in the Article
38 of the ICJ Statute suggests an implicit hierarchy of sources. However,
there is no concrete evidence, in the decisions of the international courts and
tribunals, to support such strict hierarchy, at least when it is about choosing
international customs and treaties.
In addition,
unlike the Article 21 of the Rome Statute of the International Criminal Court,
which clearly defines hierarchy of applicable law (or sources of international
law), the language of the Article 38 do not explicitly support hierarchy of
sources.
The sources
have been influenced by a range of political and legal theories. During the
20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by
consenting to an agreement according to the principle pacta sunt servanda.
This
consensual view of international law was reflected in the 1920 Statute of the
Permanent Court of International Justice, which was succeeded by the United Nations Charter and
is preserved in the United Nations Article
7 of the 1946 Statute of the International Court of Justice.
Types
of International Law
Public
international law
Public
international law (or international public law) concerns the treaty relationships between the nations and persons
which are considered the subjects of international law. Norms of international
law have their source in either:
custom, or customary international law (consistent
state practice accompanied by opinio juris),
globally
accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
codifications
contained in conventional agreements, generally termed treaties.
Article 13 of
the United Nations Charter obligates the UN General Assembly to
initiate studies and make recommendations which encourage the progressive
development of international law and its codification. Evidence of consensus or
state practice can sometimes be derived from intergovernmental resolutions or
academic and expert legal opinions (sometimes collectively termed soft law).
Private
international law
Conflict of laws
Conflict of
laws, often called "private international law" in civil law jurisdictions,
is distinguished from public international law because it governs conflicts
between private persons rather than states (or other international bodies with
standing).
It concerns
the questions of which jurisdiction should be permitted to hear a legal dispute
between private parties, and which jurisdiction's law should be applied, therefore raising
issues of international law.
Today corporations are increasingly capable of shifting capital
and labor supply chains across borders, as well as
trading with overseas corporations. This increases the number of disputes of an
inter-state nature outside a unified legal framework, and raises issues of the
enforceability of standard practices. Increasing numbers of businesses use
commercial arbitration under the New York Convention 1958.
Supranational law
Systems of
"supranational law" arise when nations explicitly cede their right to
make certain judicial decisions to a common tribunal.
The
decisions of the common tribunal are directly effective in each party nation,
and have priority over decisions taken by national courts. The European Union is an example of an international treaty
organization which implements a supranational legal framework, with the European Court of Justice having
supremacy over all member-nation courts in matter of European Union law.
International courts
There are
numerous international bodies created by treaties adjudicating on legal issues
where they may have jurisdiction. The only one claiming universal jurisdiction is
the United Nations Security Council.
Others are: the United Nations International Court of Justice,
and the International Criminal Court (when
national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport.
East Africa Community
There were
ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding
supranational law, but this effort has not materialized.
Union of South American Nations
The Union of
South American Nations serves the South American continent. It intends to
establish a framework akin to the European Union by the end of 2019. It is envisaged to have
its own passport and currency, and limit barriers to trade.
Andean Community of Nations
The Andean
Community of Nations is the first attempt to integrate the countries of the Andes Mountains in South America. It started with the
Cartagena Agreement of 26 May 1969, and consists of four countries: Bolivia, Colombia, Ecuador and Peru.
The Andean Community follows supranational laws, called Agreements, which are
mandatory for these countries.
