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Material for PIL Intensive:

The nature and development of international law

international law, also called public international law or law of

nations, 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 international law, also called public
international law or law of nations, the body of legal rules, norms, and
standards that apply between sovereign states and other entities that are
legally recognized as international actors. Bentham (1748–1832).

Definition and scope

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
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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
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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.

Historical
development
International law reflects the establishment and subsequent modification of
a world system founded almost exclusively on the notion that
independent sovereign states are the only relevant actors in the
international system. The essential structure of international law was
mapped out during the European Renaissance, though its origins lay deep
in history and can be traced to cooperative agreements between peoples in
the ancient Middle East. Among the earliest of these agreements were a
treaty between the rulers of Lagash and Umma (in the area of
Mesopotamia) in approximately 2100 BCE and an agreement between the
Egyptian pharaoh Ramses II and Hattusilis III, the king of the Hittites,
concluded in 1258 BCE. A number of pacts were subsequently negotiated by
various Middle Eastern empires. The long and rich cultural traditions of
ancient Israel, the Indian subcontinent, and China were also vital in the
development of international law. In addition, basic notions of governance,
of political relations, and of the interaction of independent units provided
by ancient Greek political philosophy and the relations between the
Greek city-states constituted important sources for the evolution of the
international legal system.

Many of the concepts that today underpin the international legal order were
established during the Roman Empire. The jus gentium (Latin: “law of
nations”), for example, was invented by the Romans to govern the status of
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foreigners and the relations between foreigners and Roman citizens. In

accord with the Greek concept of natural law, which they adopted, the
Romans conceived of the jus gentium as having universal application. In
the Middle Ages, the concept of natural law, infused with religious
principles through the writings of the Jewish philosopher Moses
Maimonides (1135–1204) and the theologian St. Thomas
Aquinas (1224/25–1274), became the intellectual foundation of the
new discipline of the law of nations, regarded as that part of natural law
that applied to the relations between sovereign states.

After the collapse of the western Roman Empire in the 5th

century CE, Europe suffered from frequent warring for nearly 500 years.
Eventually, a group of nation-states emerged, and a number of
supranational sets of rules were developed to govern interstate relations,
including canon law, the law merchant (which governed trade), and various
codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an
island off the west coast of France, and the Laws of Wisby (Visby), the seat
of the Hanseatic League until 1361. In the 15th century the arrival of Greek
scholars in Europe from the collapsing Byzantine Empire and the
introduction of the printing press spurred the development of scientific,
humanistic, and individualist thought, while the expansion of ocean
navigation by European explorers spread European norms throughout the
world and broadened the intellectual and geographic horizons of western
Europe. The subsequent consolidation of European states with increasing
wealth and ambitions, coupled with the growth in trade, necessitated the
establishment of a set of rules to regulate their relations. In the 16th
century the concept of sovereignty provided a basis for the entrenchment of
power in the person of the king and was later transformed into a principle
of collective sovereignty as the divine right of kings gave way
constitutionally to parliamentary or representative forms of government.
Sovereignty also acquired an external meaning, referring to independence
within a system of competing nation-states.

Early writers who dealt with questions of governance and relations between
nations included the Italian lawyers Bartolo da Sassoferrato (1313/14–
1357), regarded as the founder of the modern study of private international
law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal adviser,
and authority on Roman and feudal law. The essence of the new approach,
however, can be more directly traced to the philosophers of the
Spanish Golden Age of the 16th and 17th centuries. Both Francisco de
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Vitoria (1486–1546), who was particularly concerned with the treatment of

the indigenous peoples of South America by the conquering Spanish forces,
and Francisco Suárez (1548–1617) emphasized that international law was
founded upon the law of nature. In 1598 Italian jurist Alberico
Gentili (1552–1608), considered the originator of the secular school of
thought in international law, published De jure belli libri tres (1598; Three
Books on the Law of War), which contained a comprehensive discussion of
the laws of war and treaties. Gentili’s work initiated a transformation of the
law of nature from a theological concept to a concept of secular philosophy
founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has
influenced the development of the field to an extent unequaled by any other
theorist, though his reputation as the father of international law has
perhaps been exaggerated. Grotius excised theology from international law
and organized it into a comprehensive system, especially in De Jure Belli ac
Pacis (1625; On the Law of War and Peace). Grotius emphasized the
freedom of the high seas, a notion that rapidly gained acceptance among
the northern European powers that were embarking upon extensive
missions of exploration and colonization around the world.

The scholars who followed Grotius can be grouped into two schools, the
naturalists and the positivists. The former camp included the German
jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the
law of nature. In contrast, positivist writers, such as Richard Zouche (1590–
1661) in England and Cornelis van Bynkershoek (1673–1743) in the
Netherlands, emphasized the actual practice of contemporary states over
concepts derived from biblical sources, Greek thought, or Roman law.
These new writings also focused greater attention on the law of peace and
the conduct of interstate relations than on the law of war, as the focus of
international law shifted away from the conditions necessary to justify the
resort to force in order to deal with increasingly sophisticated interstate
relations in areas such as the law of the sea and commercial treaties. The
positivist school made use of the new scientific method and was in that
respect consistent with the empiricist and inductive approach to philosophy
that was then gaining acceptance in Europe. Elements of both positivism
and natural law appear in the works of the German philosopher Christian
Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both
of whom attempted to develop an approach that avoided the extremes of
each school. During the 18th century, the naturalist school was gradually
eclipsed by the positivist tradition, though, at the same time, the concept of
natural rights—which played a prominent role in the American and French
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revolutions—was becoming a vital element in international politics. In

international law, however, the concept of natural rights had only marginal
significance until the 20th century.

Positivism’s influence peaked during the expansionist and industrial 19th

century, when the notion of state sovereignty was buttressed by the ideas
of exclusive domestic jurisdiction and nonintervention in the affairs of
other states—ideas that had been spread throughout the world by the
European imperial powers. In the 20th century, however, positivism’s
dominance in international law was undermined by the impact of two world
wars, the resulting growth of international organizations—e.g., the League
of Nations, founded in 1919, and the UN, founded in 1945—and the
increasing importance of human rights. Having become geographically
international through the colonial expansion of the European powers,
international law became truly international in the first decades after World
War II, when decolonization resulted in the establishment of scores of
newly independent states. The varying political and economic interests and
needs of these states, along with their diverse cultural backgrounds, infused
the hitherto European-dominated principles and practices of international
law with new influences.

The development of international law—both its rules and its institutions—is

inevitably shaped by international political events. From the end of World
War II until the 1990s, most events that threatened international peace and
security were connected to the Cold War between the Soviet Union and its
allies and the U.S.-led Western alliance. The UN Security Council was
unable to function as intended, because resolutions proposed by one side
were likely to be vetoed by the other. The bipolar system of alliances
prompted the development of regional organizations—e.g., the Warsaw
Pact organized by the Soviet Union and the North Atlantic Treaty
Organization (NATO) established by the United States—and encouraged
the proliferation of conflicts on the peripheries of the two blocs, including
in Korea, Vietnam, and Berlin. Furthermore, the development of norms for
protecting human rights proceeded unevenly, slowed by sharp ideological
divisions.

The Cold War also gave rise to the coalescence of a group of nonaligned and
often newly decolonized states, the so-called “Third World,” whose support
was eagerly sought by both the United States and the Soviet Union. The
developing world’s increased prominence focused attention upon the
interests of those states, particularly as they related to decolonization,
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racial discrimination, and economic aid. It also fostered greater

universalism in international politics and international law. The ICJ’s
statute, for example, declared that the organization of the court must reflect
the main forms of civilization and the principal legal systems of the world.
Similarly, an informal agreement among members of the UN requires that
nonpermanent seats on the Security Council be apportioned to ensure
equitable regional representation; 5 of the 10 seats have regularly gone to
Africa or Asia, two to Latin America, and the remainder to Europe or other
states. Other UN organs are structured in a similar fashion.

The collapse of the Soviet Union and the end of the Cold War in the early
1990s increased political cooperation between the United States and Russia
and their allies across the Northern Hemisphere, but tensions also
increased between states of the north and those of the south, especially on
issues such as trade, human rights, and the law of the sea. Technology
and globalization—the rapidly escalating growth in the international
movement in goods, services, currency, information, and persons—also
became significant forces, spurring international cooperation and
somewhat reducing the ideological barriers that divided the world,
though globalization also led to increasing trade tensions between allies
such as the United States and the European Union (EU).

Since the 1980s, globalization has increased the number and sphere of
influence of international and regional organizations and required the
expansion of international law to cover the rights and obligations of these
actors. Because of its complexity and the sheer number of actors it affects,
new international law is now frequently created through processes that
require near-universal consensus. In the area of the environment, for
example, bilateral negotiations have been supplemented—and in some
cases replaced—by multilateral ones, transmuting the process of individual
state consent into community acceptance. Various environmental
agreements and the Law of the Sea treaty (1982) have been negotiated
through this consensus-building process. International law as a system is
complex. Although in principle it is “horizontal,” in the sense of being
founded upon the concept of the equality of states—one of the basic
principles of international law—in reality some states continue to be more
important than others in creating and maintaining international law.
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International law
and municipal law
In principle, international law operates only at the international level and
not within domestic legal systems—a perspective consistent with
positivism, which recognizes international law and municipal law as
distinct and independent systems. Conversely, advocates of natural
law maintain that municipal and international law form a single legal
system, an approach sometimes referred to as monism. Such a system,
according to monists, may arise either out of a unified ethical approach
emphasizing universal human rights or out of a formalistic, hierarchical
approach positing the existence of one fundamental norm underpinning
both international law and municipal law.

A principle recognized both in international case law (e.g.,

the Alabama claims case between the United States and the United
Kingdom following the American Civil War) and in treaties (e.g., Article 27
of the 1969 Vienna Convention on the Law of Treaties) is that no municipal
rule may be relied upon as a justification for violating international law.
The position of international law within municipal law is more complex and
depends upon a country’s domestic legislation. In particular, treaties must
be distinguished from customary international law. Treaties are written
agreements that are signed and ratified by the parties and binding on them.
Customary international law consists of those rules that have arisen as a
consequence of practices engaged in by states.

The Constitution of the United States stipulates (Article VI, Section 2)

that treaties “shall be the supreme Law of the Land.” Treaties are
negotiated by the president but can be ratified only with the approval of
two-thirds of the Senate (Article II)—except in the case of executive
agreements, which are made by the president on his own authority.
Further, a treaty may be either self-executing or non-self-executing,
depending upon whether domestic legislation must be enacted in order for
the treaty to enter into force. In the United States, self-executing treaties
apply directly as part of the supreme law of the land without the need for
further action. Whether a treaty is deemed to be self-executing depends
upon the intention of the signatories and the interpretation of the courts.
In Sei Fujii v. State of California (1952), for example, the California
Supreme Court held that the UN Charter was not self-executing because its
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relevant principles concerning human rights lacked the mandatory quality

and certainty required to create justiciable rights for private persons upon
its ratification; since then the ruling has been consistently applied by other
courts in the United States. In contrast, customary international law was
interpreted as part of federal law in the Paquette Habana case (1900), in
which the U.S. Supreme Court ruled that international law forbade the U.S.
Navy from selling, as prizes of war, Cuban fishing vessels it had seized.
Domestic legislation is supreme in the United States even if
it breaches international law, though the government may be held liable for
such a breach at the international level. In order to mitigate such a
possibility, there is a presumption that the U.S. Congress will not legislate
contrary to the country’s international obligations.

The United Kingdom takes an incorporationist view, holding that

customary international law forms part of the common law. British law,
however, views treaties as purely executive, rather than legislative, acts.
Thus, a treaty becomes part of domestic law only if relevant legislation is
adopted. The same principle applies in other countries where the English
common law has been accepted (e.g., the majority of Commonwealth states
and Israel). Although the incorporationist view regards customary law as
part of the law of the land and presumes that municipal laws should not be
inconsistent with international law, municipal laws take precedence over
international law in cases of conflict. Those common-law countries that
have adopted a written constitution generally have taken slightly different
positions on the incorporation of international law into municipal law.
Ireland’s constitution, for example, states that the country will not be
bound by any treaty involving public funds without the consent of the
national legislature, and in Cyprus treaties concluded in accordance with its
constitution have a status superior to municipal law on the condition
of reciprocity.

In most civil-law countries, the adoption of a treaty is a legislative act. The

relationship between municipal and international law varies, and the status
of an international treaty within domestic law is determined by the
country’s constitutional provisions. In federal systems, the application of
international law is complex, and the rules of international law are
generally deemed to be part of the federal law. Although a treaty generally
becomes operative only when it has been ratified by a national
legislature, EU countries have agreed that regulations and decisions
emanating from EU institutions are directly applicable and enforceable
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without the need for enabling legislation—except for legislation permitting

this form of lawmaking, which is adopted upon the country’s entry into the
union (e.g., Britain’s adoption of the European Communities Act in 1972).

Sources of international law

Article 38 (1) of the ICJ’s statute identifies three sources of international

law: treaties, custom, and general principles. Because the system of
international law is horizontal and decentralized, the creation of
international laws is inevitably more complicated than the creation of laws
in domestic systems.

Treaties
Treaties are known by a variety of terms—conventions, agreements, pacts,
general acts, charters, and covenants—all of which signify written
instruments in which the participants (usually but not always states) agree
to be bound by the negotiated terms. Some agreements are governed by
municipal law (e.g., commercial accords between states and international
enterprises), in which case international law is inapplicable. Informal,
nonbinding political statements or declarations are excluded from the
category of treaties.

Treaties may be bilateral or multilateral. Treaties with a number of parties

are more likely to have international significance, though many of the most
important treaties (e.g., those emanating from Strategic Arms Limitation
Talks) have been bilateral. A number of contemporary treaties, such as
the Geneva Conventions (1949) and the Law of the Sea treaty (1982;
formally the United Nations Convention on the Law of the Sea), have more
than 150 parties to them, reflecting both their importance and the evolution
of the treaty as a method of general legislation in international law. Other
significant treaties include the Convention on the Prevention and
Punishment of the Crime of Genocide (1948), the Vienna Convention on
Diplomatic Relations (1961), the Antarctic Treaty (1959), and the Rome
Statute establishing the International Criminal Court (1998). Whereas
some treaties create international organizations and provide their
constitutions (e.g., the UN Charter of 1945), others deal with
more mundane issues (e.g., visa regulations, travel arrangements, and
bilateral economic assistance).
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Countries that do not sign and ratify a treaty are not bound by its
provisions. Nevertheless, treaty provisions may form the basis of an
international custom in certain circumstances, provided that the provision
in question is capable of such generalization or is “of a fundamentally
norm-creating character,” as the ICJ termed the process in the North Sea
Continental Shelf cases (1969). A treaty is based on the consent of the
parties to it, is binding, and must be executed in good faith. The concept
known by the Latin formula pacta sunt servanda (“agreements must be
kept”) is arguably the oldest principle of international law. Without such a
rule, no international agreement would be binding or enforceable. Pacta
sunt servanda is directly referred to in many international agreements
governing treaties, including the Vienna Convention on the Law of
Treaties (1969), which concerns treaties between states, and the Vienna
Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations (1986).

There is no prescribed form or procedure for making or concluding treaties.

They may be drafted between heads of state or between government
departments. The most crucial element in the conclusion of a treaty is the
signaling of the state’s consent, which may be done by signature, an
exchange of instruments, ratification, or accession. Ratification is the usual
method of declaring consent—unless the agreement is a low-level one, in
which case a signature is usually sufficient. Ratification procedures vary,
depending on the country’s constitutional structure.

Treaties may allow signatories to opt out of a particular provision, a tactic

that enables countries that accept the basic principles of a treaty to become
a party to it even though they may have concerns about peripheral issues.
These concerns are referred to as “reservations,” which are distinguished
from interpretative declarations, which have no binding effect. States may
make reservations to a treaty where the treaty does not prevent doing so
and provided that the reservation is not incompatible with the treaty’s
object and purpose. Other states may accept or object to such reservations.
In the former case, the treaty as modified by the terms of the reservations
comes into force between the states concerned. In the latter case, the treaty
comes into force between the states concerned except for the provisions to
which the reservations relate and to the extent of the reservations. An
obvious defect of this system is that each government determines whether
the reservations are permissible, and there can be disagreement regarding
the legal consequences if a reservation is deemed impermissible.
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A set of rules to interpret treaties has evolved. A treaty is expected to be

interpreted in good faith and in accordance with the ordinary meanings of
its terms, given the context, object, and purpose of the treaty.
Supplementary means of interpretation, including the use of travaux
préparatoires (French: “preparatory works”) and consideration of the
circumstances surrounding the conclusion of the treaty, may be used when
the treaty’s text is ambiguous. In certain cases, a more flexible method of
treaty interpretation, based on the principle of effectiveness (i.e., an
interpretation that would not allow the provision in question to be rendered
useless) coupled with a broader-purposes approach (i.e., taking into
account the basic purposes of the treaty in interpreting a particular
provision), has been adopted. Where the treaty is also the constitutional
document of an international organization, a more programmatic
or purpose-oriented approach is used in order to assist the organization in
coping with change. A purpose-oriented approach also has been deemed
appropriate for what have been described as “living instruments,” such as
human rights treaties that establish an implementation system; in the case
of the European Convention on Human Rights of 1950, this approach has
allowed the criminalization of homosexuality to be regarded as a violation
of human rights in the contemporary period despite the fact that it was the
norm when the treaty itself was signed.

A treaty may be terminated or suspended in accordance with one of its

provisions (if any exist) or by the consent of the parties. If neither is the
case, other provisions may become relevant. If a material breach of a
bilateral treaty occurs, the innocent party may invoke that breach as a
ground for terminating the treaty or suspending its operation. The
termination of multilateral treaties is more complex. By unanimous
agreement, all the parties may terminate or suspend the treaty in whole or
in part, and a party specially affected by a breach may suspend the
agreement between itself and the defaulting state. Any other party may
suspend either the entire agreement or part of it in cases where the treaty is
such that a material breach will radically change the position of every party
with regard to its obligations under the treaty. The ICJ, for example, issued
an advisory opinion in 1971 that regarded as legitimate the General
Assembly’s termination of the mandate for South West Africa. A breach of a
treaty is generally regarded as material if there is an impermissible
repudiation of the treaty or if there is a violation of a provision essential to
the treaty’s object or purpose.
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The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates
that, where there has been a fundamental change of circumstances, a party
may withdraw from or terminate the treaty in question. An obvious
example would be one in which a relevant island has become submerged. A
fundamental change of circumstances, however, is not sufficient for
termination or withdrawal unless the existence of the original
circumstances was an essential basis of the consent of the parties to be
bound by the treaty and the change radically transforms the extent of
obligations still to be performed. This exception does not apply if the treaty
establishes a boundary or if the fundamental change is the result of a
breach by the party invoking it of an obligation under the treaty or of any
other international obligation owed to any other party to the treaty.

Custom
The ICJ’s statute refers to “international custom, as evidence of a general
practice accepted as law,” as a second source of international law. Custom,
whose importance reflects the decentralized nature of the international
system, involves two fundamental elements: the actual practice of states
and the acceptance by states of that practice as law. The actual practice of
states (termed the “material fact”) covers various elements, including the
duration, consistency, repetition, and generality of a particular kind of
behaviour by states. All such elements are relevant in determining whether
a practice may form the basis of a binding international custom. The ICJ
has required that practices amount to a “constant and uniform usage” or be
“extensive and virtually uniform” to be considered binding. Although all
states may contribute to the development of a new or modified custom,
they are not all equal in the process. The major states generally possess a
greater significance in the establishment of customs. For example, during
the 1960s the United States and the Soviet Union played a far more crucial
role in the development of customs relating to space law than did the states
that had little or no practice in this area. After a practice has been
established, a second element converts a mere usage into a binding custom
—the practice must be accepted as opinio juris sive necessitatis (Latin:
“opinion that an act is necessary by rule of law”). In the North Sea
Continental Shelf cases, the ICJ stated that the practice in question must
have “occurred in such a way as to show a general recognition that a rule of
law or legal obligation is involved.”
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Once a practice becomes a custom, all states in the

international community are bound by it whether or not individual states
have expressly consented—except in cases where a state has objected from
the start of the custom, a stringent test to demonstrate. A particular
practice may be restricted to a specified group of states (e.g., the Latin
American states) or even to two states, in which cases the standard for
acceptance as a custom is generally high. Customs can develop from a
generalizable treaty provision, and a binding customary rule and a
multilateral treaty provision on the same subject matter (e.g., the right to
self-defense) may exist at the same time.

General principles of law

A third source of international law identified by the ICJ’s statute is “the
general principles of law recognized by civilized nations.” These principles
essentially provide a mechanism to address international issues not already
subject either to treaty provisions or to binding customary rules. Such
general principles may arise either through municipal law or through
international law, and many are in fact procedural or evidential principles
or those that deal with the machinery of the judicial process—e.g., the
principle, established in Chorzow Factory (1927–28), that the breach of an
engagement involves an obligation to make reparation. Accordingly, in
the Chorzow Factory case, Poland was obliged to pay compensation to
Germany for the illegal expropriation of a factory.

Perhaps the most important principle of international law is that of good

faith. It governs the creation and performance of legal obligations and is the
foundation of treaty law. Another important general principle is that
of equity, which permits international law to have a degree of flexibility in
its application and enforcement. The Law of the Sea treaty, for example,
called for the delimitation on the basis of equity of exclusive economic
zones and continental shelves between states with opposing
or adjacent coasts.

Other sources
Article 38 (1) of the ICJ’s statute also recognizes judicial decisions and
scholarly writings as subsidiary means for the determination of the law.
Both municipal and international judicial decisions can serve to establish
new principles and rules. In municipal cases, international legal rules can
become clear through their consistent application by the courts of a number
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of states. A clearer method of law determination, however, is constituted by

the international judicial decisions of bodies such as the ICJ at The Hague,
the UN International Tribunal for the Law of the Sea at Hamburg
(Germany), and international arbitral tribunals.

International law can arise indirectly through other mechanisms.

UN General Assembly resolutions, for example, are not binding—except
with respect to certain organizational procedures—but they can be
extremely influential. Resolutions may assist in the creation of new
customary rules, both in terms of state practice and in the process of
establishing a custom by demonstrating the acceptance by states of the
practice “as law” (the opinio juris). For this to occur, a resolution must
contain generalizable provisions and attract substantial support from
countries with diverse ideological, cultural, and political perspectives.
Examples of such resolutions include the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960), the Declaration on
the Legal Principles Governing Activities of States in the Exploration and
Use of Outer Space (1963), and the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among
States (1970).

Unilateral actions by a state may give rise to legal obligations when it is

clear that the state intends to be bound by the obligation and when its
intention is publicly announced. An example of such a case was France’s
decision to stop atmospheric nuclear testing during litigation at the ICJ
between it and Australia and New Zealand (1974) concerning the legality of
such testing. Unilateral statements also may constitute evidence of a state’s
views on a particular issue. Even when an instrument or document does not
entail a legal obligation, it may be influential within the international
community. The Helsinki Accords (1975), which attempted to reduce
tensions between the Soviet Union and the United States during the Cold
War, was expressly not binding but had immense political effects. In certain
areas, such as environmental law and economic law, a range of
recommendations, guidelines, codes of practice, and standards may
produce what is termed “soft law”—that is, an instrument that has no strict
legal value but constitutes an important statement.

Hierarchies of sources and norms

 16

General principles are complementary to treaty law and custom. Sources

that are of more recent origin are generally accepted as more authoritative,
and specific rules take precedence over general rules. Jus cogens (Latin:
“compelling law”) rules are peremptory norms that cannot be deviated from
by states; they possess a higher status than jus dispositivum (Latin: “law
subject to the dispensation of the parties”), or normal international rules,
and can be altered only by subsequent norms of the same status. Rules in
the former category include the prohibitions against genocide, slavery,
and piracy and the outlawing of aggression. Other examples of jus
cogens rules are more controversial. The Vienna Convention on the Law of
Treaties provides (Article 53) that a treaty will be void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international
law. Further, the wrongfulness of a state action is precluded if the act is
required by a peremptory norm of general international law. For a jus
cogens norm to be created, the principle must first be established as a rule
of international law and then recognized by the international community as
a peremptory rule of law from which no derogation is permitted.

International law also has established a category of erga omnes (Latin:

“toward all”) obligations, which apply to all states. Whereas in ordinary
obligations the defaulting state bears responsibility toward particular
interested states (e.g., other parties to the treaty that has been breached), in
the breach of erga omnes obligations, all states have an interest and may
take appropriate actions in response.

States in
international law
Although states are not the only entities with international legal standing
and are not the exclusive international actors, they are the primary subjects
of international law and possess the greatest range of rights and
obligations. Unlike states, which possess rights and obligations
automatically, international organizations, individuals, and others derive
their rights and duties in international law directly from particular
instruments. Individuals may, for example, assert their rights under
international law under the International Covenant on Economic, Social,
and Cultural Rights and the International Covenant on Civil and Political
Rights, both of which entered into force in 1976.
 17

Statehood
Creation of states
The process of creating new states is a mixture of fact and law, involving the
establishment of particular factual conditions and compliance with relevant
rules. The accepted criteria of statehood were laid down in the Montevideo
Convention (1933), which provided that a state must possess a permanent
population, a defined territory, a government, and the capacity to
conduct international relations.

The need for a permanent population and a defined territory is clear,

though boundary disputes—e.g., those concerning Albania after World War
I and Israel in 1948—do not preclude statehood. The
international community (including the UN) has recognized some states
while they were embroiled in a civil war (e.g., the Congo in 1960 and Angola
in 1975), thus eroding the effective-
government criterion. Croatia and Bosnia and Herzegovina were also
recognized as new states by much of the international community in 1992,
though at the time neither was able to exercise any effective control over
significant parts of its territory. Although independence is required, it need
not be more than formal constitutional independence.

States may become extinct through merger (North and South Yemen in
1990), absorption (the accession of the Länder [states] of the German
Democratic Republic into the Federal Republic of Germany in 1990),
dissolution and reestablishment as new and separate states (the creation of
separate Czech and Slovak republics from Czechoslovakia in 1993), limited
dismemberment with a territorially smaller state continuing the identity of
the larger state coupled with the emergence of new states from part of the
territory of the latter (the Soviet Union in 1991), or,
historically, annexation (Nazi Germany’s Anschluss of Austria in 1938).

Recognition
Recognition is a process whereby certain facts are accepted and endowed
with a certain legal status, such as statehood, sovereignty over newly
acquired territory, or the international effects of the grant of nationality.
The process of recognizing as a state a new entity that conforms with the
 18

criteria of statehood is a political one, each country deciding for itself

whether to extend such acknowledgment. Normal sovereign and diplomatic
immunities are generally extended only after a state’s executive authority
has formally recognized another state (see diplomatic immunity).
International recognition is important evidence that the factual criteria of
statehood actually have been fulfilled. A large number of recognitions may
buttress a claim to statehood even in circumstances where the conditions
for statehood have been fulfilled imperfectly (e.g., Bosnia and Herzegovina
in 1992). According to the “declaratory” theory of recognition, which is
supported by international practice, the act of recognition signifies no more
than the acceptance of an already-existing factual situation—i.e.,
conformity with the criteria of statehood. The “constitutive” theory, in
contrast, contends that the act of recognition itself actually creates the
state.

Before granting recognition, states may require the fulfillment of additional

conditions. The European Community (ultimately succeeded by the EU),
for example, issued declarations in 1991 on the new states that were then
forming in eastern Europe, the former Soviet Union, and Yugoslavia that
required, inter alia, respect for minority rights, the inviolability of frontiers,
and commitments to disarmament and nuclear nonproliferation. The
timing of any recognition is crucial—particularly when a new state has been
formed partly from an existing one. Premature recognition in a case of
secession can amount to intervention in a state’s internal affairs, a violation
of one of the fundamental principles of international law. Recognition
of governments is distinguished from the recognition of a state. The
contemporary trend is in fact no longer to recognize governments formally
but to focus instead upon the continuation (or discontinuation) of
diplomatic relations. By this change, states seek to avoid the political
difficulties involved in deciding whether or not to “recognize” new regimes
taking power by nonconstitutional means.

Although states are not obliged to recognize new claimants to statehood,

circumstances sometimes arise that make it a positive duty not to recognize
a state. During the 1930s, U.S. Secretary of State Henry
Stimson propounded the doctrine of the nonrecognition of situations
created as a result of aggression, an approach that has been reinforced since
the end of World War II. In the 1960s, the UN Security Council “called
upon” all states not to recognize the Rhodesian white-minority regime’s
declaration of independence and imposed economic sanctions. Similar
 19

international action was taken in the 1970s and ’80s in response to South
Africa’s creation of Bantustans, or homelands, which were territories that
the white-minority government designated as “independent states” as part
of its policy of apartheid. The Security Council also pronounced the
purported independence of Turkish-occupied northern Cyprus as “legally
invalid” (1983) and declared “null and void” Iraq’s annexation of Kuwait
(1990). The UN also has declared that Israel’s purported annexation of
the Golan Heights (conquered from Syria in 1967) is invalid and has ruled
similarly with regard to Israel’s extension of its jurisdiction to formerly
Jordanian-controlled East Jerusalem.

The responsibility of
states
The rights accorded to states under international law imply responsibilities.
States are liable for breaches of their obligations, provided that
the breach is attributable to the state itself. A state is responsible for direct
violations of international law—e.g., the breach of a treaty or the violation
of another state’s territory. A state also is liable for breaches committed by
its internal institutions, however they are defined by its domestic law; by
entities and persons exercising governmental authority; and by persons
acting under the direction or control of the state. These responsibilities
exist even if the organ or entity exceeded its authority. Further, the state is
internationally responsible for the private activities of persons to the extent
that they are subsequently adopted by the state. In 1979, for example, the
Iranian government officially supported the seizure of the U.S. embassy by
militants and the subsequent holding of diplomats and other embassy staff
as hostages. A state is not internationally responsible if its conduct was
required by a peremptory norm of general international law, if it was taken
in conformity with the right to self-defense under the UN Charter, if
it constituted a legitimate measure to pressure another state to comply with
its international obligations, if it was taken as a result of a force
majeure (French: “greater force”) beyond the state’s control, if it could not
reasonably be avoided in order to save a life or lives, or if it constituted the
only means of safeguarding an essential interest of the state against a grave
and imminent peril, where no essential interest of the states toward which
the obligation exists (or of the international community) was impaired.
 20

A state must make full reparation for any injury caused by an illegal act for
which it is internationally responsible. Reparation consists of restitution of
the original situation if possible, compensation where this is not possible,
or satisfaction (i.e., acknowledgment of and apology for the breach) if
neither is possible.

One controversial aspect of international law has been the suggestion,

made by the International Law Commission in its 1996 draft on State
Responsibility, that states can be held responsible for “international
crimes” (comprising internationally wrongful acts resulting from the breach
by a state of an international obligation so essential for the protection of the
international community’s fundamental interests that its breach is
recognized as a crime by that community). Examples given
included aggression, colonial domination, and genocide. In addition to the
argument that states (as distinct from individuals) could not be guilty of
crimes as such, serious definitional problems arose, and there was concern
over the consequences of such crimes for states. Accordingly, in its draft
articles finally adopted in 2001, the International Law Commission
dispensed with this politically divisive approach but retained the idea of a
more serious form of international wrong. The commission emphasized the
concept of serious breaches of obligations arising under a peremptory norm
of international law (i.e., the rules of jus cogens, or those deemed essential
for the protection of fundamental international interests). In such
circumstances, all states are under an obligation not to recognize such a
situation and to cooperate in ending it.

States may take up the claims of individuals injured because of the acts or
omissions of another state. In such circumstances, the injured persons
must have exhausted all domestic remedies to hold the state responsible
unless these are ineffective. Further, the injured person must be a national
of the state adopting the claim. Although states alone possess the right to
grant nationality, if the claim is pleaded against another state, the grant of
nationality must conform to the requirements of international law and, in
particular, demonstrate the existence of a genuine link between the
individual and the state concerned.

Spatial definition of states

Territory
 21

The sovereignty of a state is confined to a defined piece of territory, which is

subject to the exclusive jurisdiction of the state and is protected by
international law from violation by other states. Although frontier disputes
do not detract from the sovereignty or independence of a particular state, it
is inherent in statehood that there should be a core territory that is subject
to the effective control of the authorities of the state. Additional territory
may be acquired by states through cession from other states (the Island of
Palmas case in 1928); by the occupation of territory that is terra
nullius (Latin: “the land of no one”)—i.e., land not under the sovereignty or
control of any other state or socially or politically organized grouping; or by
prescription, where a state acquires territory through a continued period of
uncontested sovereignty.

Under the UN Charter, sovereign title to territory cannot be acquired purely

and simply by the use of force. Express or implied consent is required
under international law for recognition of territory acquired by force,
whether or not the use of force was legal. When states are created from the
dissolution or dismemberment of existing countries, it is presumed that the
frontiers of the new states will conform to the boundaries of prior internal
administrative divisions. This doctrine, known as uti possidetis (Latin: “as
you possess”), was established to ensure the stability of newly independent
states whose colonial boundaries were often drawn arbitrarily.

Maritime spaces and boundaries

The sovereign territory of a state extends to its recognized land boundaries
and to the border of airspace and outer space above them. A state that has a
coastal boundary also possesses certain areas of the sea. Sovereignty over
bodies of water is regulated by four separate 1958 conventions—the
Convention on the Territorial Sea and Contiguous Zone, the Convention on
the Continental Shelf, the Convention on the High Seas, and the Geneva
Convention on Fishing and Conservation of the Living Resources of the
High Seas—and by the comprehensive Law of the Sea treaty (1982), which
entered into force in 1994.

The territory of states includes internal waters (i.e., harbours, lakes, and
rivers that are on the landward side of the baselines from which the
territorial sea and other maritime zones are measured), over which the
state has full and complete sovereignty and exclusive jurisdiction. Through
the Law of the Sea treaty and now under customary international law, a
 22

state may claim a territorial sea of up to 12 nautical miles from the

baselines (essentially the low-water mark around the coasts of the state
concerned), though, in cases where a coast is heavily indented, a series of
straight baselines from projecting points may be drawn. A state has
sovereignty over its territorial seas, but they are subject to the right of
innocent passage—i.e., the right of all shipping to pass through
the territorial waters of states, provided that the passage is not prejudicial.
Examples of prejudicial conduct include the threat or use of force, spying,
willful and serious pollution, breaches of customs, sanitary, fiscal, and
immigration regulations, and fishing. Coastal states may exercise a limited
degree of criminal jurisdiction with regard to foreign ships that are engaged
in innocent passage through their territorial seas (e.g., in cases where the
consequences of the crime alleged extend to the coastal state or where such
measures are necessary for the suppression of the traffic of illicit drugs).

The 1958 Convention on the Territorial Sea and Contiguous Zone provided
that states cannot suspend the innocent passage of foreign ships through
straits that are used for international navigation between one part of
the high seas and another part of the high seas or the territorial sea of a
foreign state. The 1982 treaty established a new right of transit passage for
the purpose of continuous and expeditious transit in straits used for
international navigation between one part of the high seas or exclusive
economic zone and another. Some international straits are subject to
special regimes. The controversial Straits Question, for example, concerned
restrictions in the 19th and 20th centuries that limited naval access to
the Bosporus and Dardanelles—which connect the Black Sea with the Sea of
Marmara and the Mediterranean Sea—to countries bordering the Black
Sea.

A series of other maritime zones extend beyond territorial seas.

A contiguous zone—which must be claimed and, unlike territorial seas, does
not exist automatically—allows coastal states to exercise the control
necessary to prevent and punish infringements of customs, sanitary, fiscal,
and immigration regulations within and beyond its territory or territorial
sea. The zone originally extended 12 nautical miles from the baselines but
was doubled by the 1982 treaty. The exclusive economic zone developed out
of claims to fishing zones. The 1982 treaty allowed states to claim such a
zone, extending 200 nautical miles from the baselines, in which they would
possess sovereign rights to explore, exploit, conserve, and manage the
natural resources of the seas and seabed; to exercise jurisdiction over
 23

artificial installations and scientific research; and to protect and preserve

the marine environment. The zone was accepted as part of customary
international law in the ICJ’s 1985 decision in the dispute between Libya
and Malta, which concerned the delimitation of the continental shelf
between them.

A state is automatically entitled to exercise sovereign rights to explore and

exploit the natural resources in an adjacent continental shelf (i.e., the
ledges projecting from the land into and under the sea). The shelf may
extend either to the outer edge of the continental margin or to 200 miles
from the baselines where the outer edge of the continental margin does not
reach that distance. Thus, the continental shelf as a concept in international
law becomes a legal fiction where the shelf does not in fact extend as far as
200 miles.

Problems have arisen over the delimitation of the various maritime zones
between adjacent and opposing states. International law generally requires
equitable resolutions of maritime territorial disputes. Although the
definition of equity is unclear, relevant factors include the impact of natural
prolongation of the land territory (i.e., the basic principle that the
continental shelf is a continuation of the land territory into the sea),
proportionality between the length of a disputing party’s coastline and the
extent of continental shelf it controls, the principle of equidistance (i.e., a
line of equal distance from the two shores in question), and the existence (if
any) of islands between the coastlines.

Jurisdiction
Jurisdiction refers to the power of a state to affect persons, property, and
circumstances within its territory. It may be exercised through legislative,
executive, or judicial actions. International law particularly addresses
questions of criminal law and essentially leaves civil jurisdiction to national
control. According to the territorial principle, states
have exclusive authority to deal with criminal issues arising within their
territories; this principle has been modified to permit officials from one
state to act within another state in certain circumstances (e.g., the Channel
Tunnel arrangements between the United Kingdom and France and the
1994 peace treaty between Israel and Jordan). The nationality principle
permits a country to exercise criminal jurisdiction over any of its nationals
accused of criminal offenses in another state. Historically, this principle has
 24

been associated more closely with civil-law systems than with common-law
ones, though its use in common-law systems increased in the late 20th
century (e.g., the adoption in Britain of the War Crimes Act in 1991 and the
Sex Offenders Act in 1997). Ships and aircraft have the nationality of the
state whose flag they fly or in which they are registered and are subject to
its jurisdiction.

The passive personality principle allows states, in limited cases, to claim

jurisdiction to try a foreign national for offenses committed abroad that
affect its own citizens. This principle has been used by the United States to
prosecute terrorists and even to arrest (in 1989–90) the de facto leader of
Panama, Manuel Noriega, who was subsequently convicted by an American
court of cocaine trafficking, racketeering, and money laundering. The
principle appears in a number of conventions, including the International
Convention Against the Taking of Hostages (1979), the Convention on the
Prevention and Punishment of Crimes Against Internationally Protected
Persons (1973), and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984). The protective
principle, which is included in the hostages and aircraft-hijacking
conventions and the Convention on the Safety of United Nations and
Associated Personnel (1994), can be invoked by a state in cases where an
alien has committed an act abroad deemed prejudicial to that state’s
interests, as distinct from harming the interests of nationals (the passive
personality principle). Finally, the universality principle allows for the
assertion of jurisdiction in cases where the alleged crime may be prosecuted
by all states (e.g., war crimes, crimes against the peace, crimes against
humanity, slavery, and piracy).

Jurisdictional immunity exists in certain contexts. Diplomatic personnel,

for example, have immunity from prosecution in the state in which they
operate. In the 1960s, however, the Vienna Convention on Diplomatic
Relations and the Vienna Convention on Consular Relations stipulated that
the level of immunity varies according to the official’s rank. Immunity is
generally more extensive in criminal than in civil matters. A country’s
diplomatic mission and archives also are protected. International
organizations possess immunity from local jurisdiction in accordance with
international conventions (e.g., the General Convention on the Privileges
and Immunities of the United Nations of 1946) and agreements signed with
the state in which they are based. Certain immunities also extend to the
judges of international courts and to visiting armed forces.
 25

Disputes between states

Peaceful settlement
International law provides a variety of methods for settling disputes
peacefully, none of which takes precedence over any other. Nonbinding
mechanisms include direct negotiations between the parties and the
involvement of third parties through good offices, mediation, inquiry, and
conciliation. The involvement of regional and global international
organizations has increased dramatically since the end of World War II, as
many of their charters contain specific peaceful-settlement mechanisms
applicable to disputes between member states. The UN may be utilized at
several levels. The secretary-general, for example, may use his good offices
to suggest the terms or modalities of a settlement, and the General
Assembly may recommend particular solutions or methods to resolve
disputes. Similarly, the Security Council may recommend solutions (e.g., its
resolution in 1967 regarding the Arab-Israeli conflict) or, if there is a threat
to or a breach of international peace and security or an act of aggression,
issue binding decisions to impose economic sanctions or to authorize the
use of military force (e.g., in Korea in 1950 and in Kuwait in 1990).
Regional organizations, such as the Organization of American States and
the African Union, also have played active roles in resolving interstate
disputes.

Additional methods of binding dispute resolution include arbitration and

judicial settlement. Arbitration occurs when the disputing states place their
conflict before a binding tribunal. In some cases, the tribunal is required to
make a number of decisions involving different claimants (e.g., in the
dispute between the United States and Iran arising out of the 1979 Iranian
revolution), while in others the tribunal will exercise jurisdiction over a
single issue only. In a judicial settlement, a dispute is placed before an
existing independent court. The most important and comprehensive of
these courts is the ICJ, the successor of the Permanent Court of
International Justice, created in 1920. Established by the UN Charter
(Article 92) as the UN’s principal judicial organ, the ICJ consists of 15
judges who represent the main forms of civilization and principal legal
systems of the world. They are elected by the General Assembly and
Security Council for nine-year terms.
 26

The ICJ, whose decisions are binding upon the parties and extremely
influential generally, possesses both contentious and advisory
jurisdiction. Contentious jurisdiction enables the court to hear cases
between states, provided that the states concerned have given their consent.
This consent may be signaled through a special agreement,
or compromis (French: “compromise”); through a convention that gives the
court jurisdiction over matters that include the dispute in question (e.g.,
the genocide convention); or through the so-called optional clause, in which
a state makes a declaration in advance accepting the ICJ’s jurisdiction over
matters relating to the dispute. The ICJ has issued rulings in numerous
important cases, ranging from the Corfu Channel case (1949), in which
Albania was ordered to pay compensation to Britain for the damage caused
by Albania’s mining of the channel, to the territorial dispute between
Botswana and Namibia (1999), in which the ICJ favoured Botswana’s claim
over Sedudu (Kasikili) Island. The ICJ’s advisory jurisdiction enables it to
give opinions on legal questions put to it by any body authorized by or
acting in accordance with the UN Charter.

Other important international judicial bodies are the European Court of

Human Rights, established by the European Convention on Human Rights;
the Inter-American Court of Human Rights, created by the Inter-American
Convention on Human Rights; and the International Tribunal for the Law
of the Sea, set up under the Law of the Sea treaty. The World Trade
Organization (WTO), established in 1995 to supervise and liberalize world
trade, also has created dispute-settlement mechanisms.

Use of force

The UN Charter prohibits the threat or the use of force against the
territorial integrity or political independence of states or in any other
manner inconsistent with the purposes of the Charter; these proscriptions
also are part of customary international law. Force may be used by states
only for self-defense or pursuant to a UN Security Council decision giving
appropriate authorization (e.g., the decision to authorize the use of force
against Iraq by the United States and its allies in the Persian Gulf War in
1990–91). The right of self-defense exists in customary international law
and permits states to resort to force if there is an instant and overwhelming
need to act, but the use of such force must be proportionate to the threat.
 27

The right to self-defense is slightly more restricted under Article 51 of the

UN Charter, which refers to the “inherent right of individual
or collective self-defence if an armed attack occurs” until the Security
Council has taken action. In a series of binding resolutions adopted after
the terrorist September 11 attacks in 2001 against the World Trade
Center and the Pentagon in the United States, the Security Council
emphasized that the right to self-defense also applies with regard to
international terrorism. Preemptive strikes by countries that reasonably
believe that an attack upon them is imminent are controversial but
permissible under international law, provided that the criteria of necessity
and proportionality are present.

It has been argued that force may be used without prior UN authorization
in cases of extreme domestic human rights abuses (e.g., the actions taken
by NATO with regard to Kosovo in 1999 or India’s intervention in East
Pakistan [now Bangladesh] in 1971). Nonetheless, humanitarian
interventions are deeply controversial, because they contradict the
principle of nonintervention in the domestic affairs of other states.

The use of force is regulated by the rules and principles of

international humanitarian law. The Geneva Conventions (1949) and their
additional protocols (1977) deal with, among other topics, prisoners of war,
the sick and wounded, war at sea, occupied territories, and the treatment of
civilians. In addition, a number of conventions and declarations detail the
types of weapons that may not be used in warfare. So-called “dum-dum
bullets,” which cause extensive tissue damage, poisonous gases, and
chemical weapons are prohibited, and the use of mines has been restricted.
Whether the use of nuclear weapons is per se illegal under international law
is an issue of some controversy; in any event, the criteria of necessity and
proportionality would have to be met.

International
cooperation
States have opted to cooperate in a number of areas beyond merely the
allocation and regulation of sovereign rights.
 28

High seas and seabed

Traditionally, the high seas beyond the territorial waters of states have been
regarded as open to all and incapable of appropriation. The definition of the
high seas has changed somewhat since the creation of the various maritime
zones, so that they now are considered to be those waters not included in
the exclusive economic zone, territorial sea, or internal waters of states or
in the archipelagic waters of archipelagic states.

The high seas are open to all states, with each state possessing the freedoms
of navigation and overflight and the freedom to lay submarine cables and
pipelines, to conduct scientific research, and to fish. On ships on the high
seas, jurisdiction is exercised by the flag state (i.e., the state whose flag is
flown by the particular ship). Nevertheless, warships have the right to
board a ship that is suspected of engaging in piracy, the slave trade, or
unauthorized broadcasting. There also is a right of “hot pursuit,” provided
that the pursuit itself is continuous, onto the high seas from the territorial
sea or economic zone of the pursuing state in order to detain a vessel
suspected of violating the laws of the coastal state in question.

The international seabed (i.e., the seabed beyond the limits of

national jurisdiction), parts of which are believed to be rich in minerals, is
not subject to national appropriation and has been designated a “common
heritage of mankind” by the Declaration of Principles Governing the Seabed
(1970) and the Law of the Sea treaty. Activities in the international seabed,
also known as “the Area,” are expected to be carried out in
the collective interests of all states, and benefits are expected to be shared
equitably.

Outer space
Outer space lies beyond the currently undefined upper limit of a state’s
sovereign airspace. It was declared free for exploration and use by all states
and incapable of national appropriation by a 1963 UN General Assembly
resolution. The Outer Space Treaty (1967) reiterated these principles and
provided that the exploration and use of outer space should be carried out
for the benefit of all countries. The Moon Treaty (1979) provided for the
demilitarization of the Moon and other celestial bodies and declared the
Moon and its resources to be a “common heritage of mankind.” A number
 29

of agreements concerning space objects (1972 and 1974) and the rescue of
astronauts (1968) also have been signed.

Antarctica
The Antarctic Treaty (1959) prevents militarization of the Antarctic
continent and suspends territorial claims by states for the life of the treaty.
Because it provides no mechanism for its termination, however, a
continuing and open-ended regime has been created. There also are various
agreements that protect Antarctica’s environment.

Protection of the environment

Because the rules of state responsibility require attributions of wrongful
acts to particular states—something that is difficult to prove conclusively in
cases of harm to the environment—it was recognized that protecting the
environment would have to be accomplished by means other than
individual state responsibility. Instead, an international cooperative
approach has been adopted. For several kinds of pollutants, for example,
states have agreed to impose progressively reduced limits on their
permissible emissions.

The Stockholm Declaration (1972) and the Rio Declaration (1992), which
was issued by the United Nations Conference on Environment and
Development, enjoined states to ensure that activities within their
jurisdiction do not cause environmental damage to other states or areas.
Other agreements have addressed the need for early consultation on
potential environmental problems, notification of existing problems, and
wider use of environmental-impact assessments. Supervisory and
monitoring mechanisms also have been established by several of these
agreements, including the Convention on Long-Range Transboundary Air
Pollution (1979), the Law of the Sea treaty, the Vienna Convention for the
Protection of the Ozone Layer (1985), the amended Convention on Marine
Pollution from Land-Based Sources (1986), the Convention on
Environmental Impact Assessment in a Transboundary Context (1991),
the Convention on Biological Diversity (1992), the United Nations
Framework Convention on Climate Change (1992), and the Kyoto
Protocol (1997).
 30

Nonstate actors in international law

Individuals
Historically, states were the only subjects of international law. During the
20th century, however, a growing body of international law was devoted to
defining the rights and responsibilities of individuals. The rights of
individuals under international law are detailed in various human
rights instruments and agreements. Although references to the protection
of human rights appear in the UN Charter, the principal engine of the
process was the Universal Declaration of Human Rights (1948; UDHR).
The UDHR has been supplemented by an impressive range of international
treaties, including the Convention on the Prevention and Punishment of the
Crime of Genocide, the International Convention on the Elimination of All
Forms of Racial Discrimination (1965), the International Covenant on Civil
and Political Rights (1966), the International Covenant on Economic, Social
and Cultural Rights (1966), the Convention on the Elimination of All Forms
of Discrimination Against Women (1979), the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984),
and the Convention on the Rights of the Child (1989). With the exception of
the convention on genocide, these agreements also have established
monitoring committees, which, depending on the terms of the particular
agreement, may examine the regular reports required of states, issue
general and state-specific comments, and entertain petitions from
individuals. The committee against torture may commence an inquiry on its
own motion. The broad rights protected in these conventions include the
right to life and due process, freedom from discrimination and torture, and
freedom of expression and assembly. The right to self-determination and
the rights of persons belonging to minority groups are protected by the
convention on civil and political rights. In addition, the UN has established
a range of organs and mechanisms to protect human rights, including the
Commission on Human Rights (replaced in 2006 by the Human Rights
Council).

Human rights protections also exist at the regional level. The best-
developed system was established by the European Convention on Human
Rights, which has more than 40 state parties as well as a court that can hear
both interstate and individual applications. Other examples are the Inter-
American Convention on Human Rights, which has a commission and a
court, and the African Charter on Human and Peoples’ Rights (1982),
which has a commission and is developing a court.
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In addition to the rights granted to individuals, international law also has

endowed them with responsibilities. In particular, following the Nürnberg
Charter (1945) and the subsequent establishment of a tribunal to prosecute
Nazi war criminals, individuals have been subject to international criminal
responsibility and have been directly liable for breaches of international
law, irrespective of domestic legal considerations. Individual responsibility
was affirmed in the Geneva Conventions and their additional protocols and
was affirmed and put into effect by the statutes that created war crimes
tribunals for Yugoslavia (1993) and Rwanda (1994), both of which
prosecuted, convicted, and sentenced persons accused of war crimes. The
Rome Statute of the International Criminal Court, which entered into force
in 2002, also provides for individual international criminal responsibility.

International organizations
A major difference between 19th- and 21st-century international law is the
prominent position now occupied by international organizations. The size
and scope of international organizations vary. They may be bilateral,
subregional, regional, or global, and they may address relatively narrow or
very broad concerns. The powers and duties allocated to international
organizations also differ widely. Some international organizations are
legally recognized as international actors—and thus are liable
for breaches of international legal obligations—while others are not.

Since the end of World War II, the leading international organization has
been the UN. Although the General Assembly may pass only nonbinding
resolutions, the Security Council can authorize the use of force if there is a
threat to or a breach of international peace and security or an act
of aggression. Since the end of the Cold War, the council has extended the
definition of a threat to or a breach of international peace and security
to encompass not only international conflicts but also internal conflicts
(e.g., in Yugoslavia, Somalia, Liberia, and Rwanda) and even the overthrow
of a democratic government and subsequent upheavals and refugee
movements (e.g., in Haiti).
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Other international organizations have developed significant roles

in international relations. They include the World Bank, which provides aid
to promote economic development, the International Monetary Fund,
which helps countries manage their balance-of-payments problems, and
the WTO, which supervises and regulates international trade. Regional
organizations and agreements, such as the EU and the North American
Free Trade Agreement between Canada, Mexico, and the United States,
govern areas that traditionally have fallen within the domestic jurisdiction
of states (e.g., trade, the environment, and labour standards). At the
beginning of the 21st century, it was apparent that individuals and
international organizations would play an increasingly vital role in
international relations and international law.

Current trends
International law has been transformed from a European-based system
enabling sovereign states to interact in a relatively limited number of areas
to a truly international order with profound and increasingly cooperative
requirements. Globalization has ensured that the doctrine of
the sovereignty of states has in practice been modified, as the proliferation
of regional and global international organizations demonstrates. In an
increasing number of cases, certain sovereign powers of states have been
delegated to international institutions. Furthermore, the growth of large
trading blocs has underscored both regional and international
interdependence, though it also has stimulated and institutionalized
rivalries between different blocs. The striking development of the
movement for universal human rights since the conclusion of World War II
has led to essentially unresolved conflicts with some states that continue to
observe traditional cultural values. The rules governing the use of force
have focused particular attention on the UN, but violent disputes have not
disappeared, and the development of increasingly deadly armaments—
including biological, chemical, and nuclear weapons (so-called “weapons of
mass destruction”)—has placed all states in a more vulnerable position.
Particular challenges are posed when such weapons are possessed by states
that have used them or threaten to do so. In 2003 the United States and
Britain led an attack against Iraq and overthrew its government because
they believed that the country continued to possess weapons of mass
destruction in defiance of binding Security Council resolutions; the attack
proceeded despite opposition from a majority of the council to a proposed
resolution explicitly authorizing the use of force. Although terrorism is not
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a new phenomenon, the increasing scale of the destruction it may cause, as

well as the use by terrorists of modern forms of communication such as
computers and mobile phones, has raised serious new challenges for
international law—ones that may affect the interpretation of the right of
self-defense and pose a critical test for the UN.
Sourced: Malcolm Shaw; Britannica