Research Paper on International Law

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Outline

I. Introduction

II. Nature and Development of International Law

A. International Law and International Relations

B. International Law and National Law

C. History

III. Sources

A. Treaties

B. Customary Law

C. General Principles

D. Legally Nonbinding Rules (Soft Law)

IV. Subjects of International Law

A. States

1. Population

2. Territory

3. Government and Capacity to Enter International Relations

B. Nonstate Actors

1. Individuals

a. Rights

b. Responsibilities

2. International Organizations

V. Special Topics

A. The Law of Armed Conflict

1. Jus ad bellum: The Use of Force

2. Jus in bello: International Humanitarian Law

B. International Economic Law

C. International Environmental Law

VI. Conclusion

I. Introduction

International law is the body of legal rules, regulations, standards, and principles that govern international relations between or among states and other international actors. It deals with important concepts such as sovereignty (supreme authority over a territory); agreements and disputes between international actors; the use of force and self-defense; the regulation of the high seas, air, and space; international trade; and human rights. The United Nations (UN) and other international organizations have created a network of instruments addressing most aspects of international relations. International law influences large parts of everyday life—it makes it possible for us to send a letter to someone on the other side of the world, to travel internationally by just using our passports, and to know what time it is anywhere on the planet (American Society of International Law, 2006).

International law is also known as public international law, which is distinct from private international law. Private international law deals with cases within the domestic legal systems of states, in which foreign elements are involved. Private international law addresses private matters, such as business disputes and family law, across international borders. Courts have to determine what jurisdiction and which laws apply to a certain case and how to enforce foreign judgments. By contrast, public international law, which is the focus of this research paper, is a separate legal system with its own rules and processes.

Public international law is in many respects comparable to domestic law, but it has just as many differences. Most importantly, international law is horizontal and decentralized. International law is horizontal because the main actors—namely, states—are considered equal in rights and duties and not subordinate to a higher authority (with some exceptions, e.g., the European Union [EU] member states). The system is decentralized because there is not one single executive, legislative, and judicial structure responsible for the creation, interpretation, and enforcement of international law but rather, as is shown in the following sections, different bodies and different processes (Brownlie, 2003; Cassese, 2005; Evans, 2006; Shaw, 2003).

II. Nature and Development of International Law

A. International Law and International Relations

International lawyers and international relations scholars often study the same issues. However, they have traditionally operated in different spheres and did not profit from each other’s work. Only in the past years has a growing consensus developed that collaboration and interdisciplinarity is fruitful and beneficial to both disciplines (see, for example, Anne-Marie Slaughter’s work). In fact, both disciplines are divided and united by the same theoretical debates. The core paradigms—realism, liberalism, and constructivism—are mainly the same with regards to the basic assumptions about the world. Realists generally have a critical view of international law because they believe that power and state capabilities (particularly military strength), rather than common interests, shape international relations. Cooperation occurs only if it is in the interest of states and has nothing to do with universal values or principles shared by all states in the world. As a result, the likelihood of cooperation is ever changing, depending on the status of international politics, the balance of power, and the relative strength or weakness of a given state. Liberals, by contrast, see the development of international law and international institutions as a result of increasing economic and social interdependence of states. Shared values such as peace, human dignity, and liberal democracy are important factors contributing to collaboration among state and nonstate actors. International organizations, nongovernmental organizations (NGOs), and individuals play an important role because they often serve as agents representing these fundamental values (e.g., human rights or environmental protection). Finally, constructivists see the international system as a construct of international actors that share the same ideas, conceptions, and values. Legal norms play an important role shaping the identity and interests of actors, which in turn influence the structure, institutions, and processes of the international system. International actors define themselves through social interactions, which change as values change (for more details, see Armstrong, Farrell, & Lambert, 2007).

B. International Law and National Law

As mentioned previously, international law is an independent legal system. Nevertheless, it interacts with domestic law in more than one way. Much of international law has to be incorporated into national law and depends on the enforcement by domestic legal systems. There are two ways to integrate international law into national law: monism and dualism. Monism sees international law and domestic law as parts of the same legal system, in which international law trumps national law. The closest approach to a monist tradition is used in the Netherlands, where no transformation into national law is needed and international law can directly be invoked by the citizens or applied by a judge. Dualism holds that international law and domestic law are separate legal systems, which operate on different levels and are based on different premises and processes. Consequently, all international norms have to be transferred into national law. In the United Kingdom, for example, international law is only applicable in British law once an act of Parliament is passed to give effect to it.

The United States’ position is generally dualist but not as pronounced as in the United Kingdom. Domestic law is considered higher than international law, which means that U.S. law could be in violation of its international treaty obligations and, if so, leads to international consequences such as condemnation, protest, and sanctions. However, Congress enacts laws generally in concordance with international obligations, and breaches tend to be very rare and minor in scope. International treaties are recognized as “supreme Law of the Land” (Article VI, Section 2, of the U.S. Constitution). Treaties are negotiated by the president but can be ratified only with the approval of two thirds of the Senate (Article II), except in cases of executive agreements, which the president can negotiate within his own authority (see the following for a more detailed description of the ratification process). A treaty can be self-executing or non-self-executing. Self-executing treaties are directly part of the law of the land and do not require domestic legislation for the treaty to enter into force. Non-self-executing treaties require an act by Congress. Whether a treaty is self-executing or not is determined by the intentions of the signatories and the interpretation of the courts. As a general rule, the more detailed and specific a treaty, the higher the probability that it is self-executing. Parts of the UN Charter (1945), for example, have been deemed non-self-executing because the rules are too broad and ambiguous to be directly applied in U.S. courts (Bederman, 2006).

C. History

Modern international law has its roots in the Peace Treaty of Westphalia (1648). The Peace of Westphalia brought an end to European religious wars (it concluded the Thirty Years’ War) and coincided with the rise of nation-states. The rulers decided that each entity should be sovereign, which meant that each sovereign (or in democracies today, the people) enjoyed supreme authority over his or her territory. This became the key concept of the international system: States are independent and autonomous and, because of sovereignty, equal in their ability to enter international relations.

Relations and agreements among sovereign entities can be traced back to ancient times, particularly regarding issues relating to peace and war, trade relations, and the law of the sea (including the prohibition of piracy) (for an overview, see Grewe, 2000). The Greeks heavily influenced international law by introducing the concept of natural law: the notion that some laws are given by nature and therefore are fixed and universal. According to the natural law tradition, what is right or wrong remains the same and does not vary over time or if the political or cultural context changes. This concept inspired modern human rights law. Roman law laid the basis for jus gentium (law of nations), which regulated the status of foreigners and relations between foreigners and Romans. During the Middle Ages, natural law, inspired by religious notions, became the intellectual foundation of the law of nations.

With the beginning of the rise of nation-states, scholars in Europe sought to define the content and existence of international law (see also Murphy, 2006). The first to discuss international law were the Spanish Scholastics such as Francisco de Vitoria (1486–1546) and Francisco Suarez (1548–1617), who relied heavily on Catholic theology in their interpretations of international law (which failed to convince the Protestant community). The Italian legal scholar Alberico Gentili (1552–1608) is considered the father of the secular school of thought in international law, initiating a transformation from a theological interpretation to a concept of secular philosophy based on reason. Following his footsteps, the so-called father of international law, Hugo Grotius (1583–1645), established international law as a comprehensive system in his 1625 masterpiece, De Jure Belli ac Pacis (On the Law of War and Peace). Many scholars followed Grotius’s natural law argumentation, most prominently the German jurist Samuel von Pufendorf (1632–1694), who insisted on the natural equality of states. German philosopher Christian Wolff (1679–1754) and Swiss legal scholar Emerich de Vattel (1714–1767) both paid tribute to the natural law tradition but characterize law just as much as the result of state practice. This new understanding of law, known as positivism, shaped international law in the 18th and 19th centuries.

Positivism states that law comprises the rules made by human beings (in the case of international law, by states) and stresses the importance of sovereign consent to international norms. Positivists argue that law is not given by nature or connected to ethical and moral beliefs but consists of the body of rules to which states have agreed (a treaty, for example, is proof of that consent). The influence of positivism in international law, however, was undermined by the two world wars, the creation of the two major international organizations—the League of Nations in 1919, afterWorldWar I, and the United Nations in 1945, afterWorldWar II—and the rise of human rights (the revival of the natural law tradition). International law became truly global in the years after the founding of the UN, when decolonization ended in the establishment of independent states in areas formerly controlled by European powers. The ideological conflicts (liberal democracy and free market economy versus communism and centrally planned economy) during the cold war and the cultural influence of the newly independent nations in Africa and Asia influenced the development international law and extended it beyond its mainly European origin and background. International law today addresses issues such as decolonization, racial discrimination, the rights and responsibilities of individuals, and economic aid.

After the collapse of the Soviet Union, many predicted a new era for international law. Two trends became particularly significant. First, the importance of human rights was strengthened by international interventions in reaction to humanitarian disasters (e.g., those in Kosovo in 1999, Rwanda in 1994, and Somalia in 1992). Second, the increasing interconnectedness among international actors due to globalization led to new areas of international cooperation such as the struggle against climate change or the improvement of trade relations. The most important issues in international law at the beginning of the 21st century are human rights and the fight against human rights violations (international criminal law and international humanitarian law), dealing with environmental problems, and the ongoing discussions on the use of force.

III. Sources

The sources of international law are laid down in Article 38 of the Statute of the International Court of Justice (ICJ, 1945). These sources are international conventions (treaties), international custom, general principles, and judicial decisions and teachings of highly respected scholars in the field. The latter (decisions and teachings) are secondary sources of international law, while treaties, custom, and general principles are considered primary sources (for more information generally, see Bederman, 2006; Brownlie, 2003; Cassese, 2005; Lowe, 2007; Murphy, 2006; Shaw, 2003). The following paragraphs focus on primary sources of international law.

A. Treaties

Treaties are written agreements between states. The signatories consent to be bound by its content, which makes a treaty legally binding. Treaties have many different names, including convention, agreement, pact, accord, protocol, charter, and covenant. Depending on the number of signatories, international law distinguishes between bilateral (two states) and multilateral (three or more states) treaties. Multilateral treaties, such as the UN Charter, the Geneva Conventions, the Nuclear Non- Proliferation Treaty (NPT), the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), the Rome Statute establishing the International Criminal Court (ICC), and the UN Convention on the Law of the Sea (UNCLOS), to name a few, usually have higher significance than bilateral treaties (with some exceptions, e.g., the disarmament agreements between the United States and Russia). The purpose and scope of treaties can be broad (e.g., the UN Charter) or specific (e.g., the International Convention for the Regulation of Whaling).

Treaty making is a multitiered process. After the text of the treaty has been negotiated, a treaty has to be signed and ratified before it enters into force. Treaties are usually signed by the head of state or his or her representatives. Ratification procedures vary depending on the constitutional structure of the state, but in most cases, the parliament or the people have to express their consent (see the aforementioned procedure in the United States). Multilateral treaties often include special clauses specifying the process (e.g., a treaty enters into force after a given time or after a set number of ratifications has been reached). Once a treaty is signed and ratified, the state has the obligation to execute it in good faith (a principle known as pacta sunt servanda, Latin for “agreements must be kept”).

Some treaties allow states to withdraw from its obligations (e.g., Article X of the NPT the so-called exit clause) or to opt out of a particular provision (termed reserva tions). Treaties can also be terminated or suspended by consent of the parties, which is more difficult in the case of multilateral treaties. If the circumstances of a treaty change dramatically, a party to a treaty can withdraw or terminate the treaty unilaterally (a principle called clausula rebus sic stantibus, Latin for “things standing thus”). However, if the fundamental change of circumstances is a result of one party violating the treaty, the principle does not apply.

Three approaches are used to understand and interpret the meaning of a treaty. First, the textual approach interprets the ordinary meaning of words of the provision as expressed in the text of the treaty and as derived from the context. It also takes different translations of the same treaty into account (e.g., UN treaties are legally binding in all official UN languages). Second, the intentional approach relies on the travaux préparatoires (French for “preparatory works”) and focuses on the intent of the drafters when they crafted the treaty. And third, the teleological approach seeks to understand the purpose of the treaty, meaning that a treaty provision should be interpreted in the way that makes the treaty most effective. Generally, all three approaches are used in combination.

B. Customary Law

The ICJ (1945) Statute refers to custom “as evidence of general practice accepted as law” (Article 38). To prove that a rule is customary, courts have to consider the actual practice of states and the acceptance by states of the practice as law (termed opinio juris sive necessitates, Latin for “opinion of law or necessity”). State practice is established by the actual behavior of states—namely, whether states use a practice repetitively and consistently over time. Opinio juris requires that states follow a rule because they believe it is lawful to do so, and not only because it is in their self-interest or because they are pressured to do so. To prove opinio juris is very difficult because states usually do not explicitly state why they follow a rule and because reasons for adherence overlap. Although all states contribute to custom, it is the practice of the most powerful states that determines the main course of the development of international customary law. Once a rule becomes customary, all states are bound by it, regardless if they expressed their consent (e.g., ratified a treaty). Most customary rules are supported by widely accepted treaty provisions (e.g., common Article 3 of the Geneva Conventions, discussed in a following section).

The concept of jus cogens (Latin for “compelling law”) is part of customary law. Jus cogens are peremptory norms that have to be followed by states in any situation. They enjoy a higher status than normal customary rules. The specific scope of jus cogens rules is unclear, but international tribunals have indicated that jus cogens includes the prohibition of slavery, genocide, forced disappearances, piracy, aggression, and state-sponsored torture. Related to jus cogens is the concept of rules erga omnes (Latin for “toward all”). Breaches of erga omnes rules concern all states and can be prosecuted anywhere by any state, regardless of where and by whom the crime was committed.

C. General Principles

The third primary source of international law is general principles. General principles provide a mechanism to address issues that are not already regulated by treaties or by customary international law. Many general principles arise from comparable practices in domestic law and concern aspects of the judicial process. The most important principle is that of good faith—namely, the fact that states have to execute their treaty obligations honestly and to the best of their ability.

D. Legally Nonbinding Rules (Soft Law)

The traditional sources of international law do not account for legally nonbinding norms. However, so-called soft law can have an important impact on international relations and on the development of international law. The Universal Declaration of Human Rights (UDHR), for example, is a legally nonbinding document but has had a tremendous influence on the development of international human rights law. Legally nonbinding norms can be found in treaty provisions that are too unspecific to be implemented automatically (e.g., preambles), political pacts (e.g., the Final Act of the 1975 Conference on Security and Cooperation in Europe [CSCE] in Helsinki), resolutions of the UN General Assembly (but UN Security Council resolutions are legally binding), and codes of behavior for states and nonstate actors (e.g., food safety codes or codes of conduct for multinational enterprises). The advantage of soft law over hard law is that states are often more inclined to negotiate and conclude such documents. Legally nonbinding norms have no special procedures or bureaucratic obstacles attached to them (as opposed to treaties; see previous discussion), and states can be less cautious about the details of the agreement. Despite being legally nonbinding, such rules are generally obeyed (they are seen as politically binding).

IV. Subjects of International Law

Subjects of international law are the actors of international relations that bear international legal rights and responsibilities. By contrast, objects of international law are the entities, processes, and instruments acted on (the topics of international law administration). Traditionally, states were the only recognized subjects of international law, but over time, other actors such as international organizations, individuals, and other nonstate actors have gained international legal personality (see, generally, Bederman, 2006; Brownlie, 2003; Cassese, 2005; Lowe, 2007; Murphy, 2006; Shaw, 2003). Today, the line between subjects and objects of international law is blurred (individuals, for example, are both objects and subjects of international law).

A. States

States are the primary subjects of international law and accordingly possess the most extensive obligations and rights in the international system. To qualify as a state, an entity has to meet four criteria (as outlined in the 1933 Montevideo Convention): a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. These principles are still valid today, although a state does not automatically lose statehood in case of border disputes or major migration (e.g., refugee flows).

1. Population

The size or density of a population does not matter when determining statehood. The only criteria are the relative permanence (this includes nomadic peoples) of the population and the requirement that the people form a living community. The staff of the Roman Catholic Church in Vatican City, for example, qualifies, which is one of the reasons why the Vatican is considered a state in international law. States award their citizens nationality, which individuals acquire in one of two ways: jus sanguinis (Latin for “right of blood”) or jus soli (Latin for “right of soil”). As the names indicate, in states using jus sanguinis, citizenship is inherited, given by blood from the parents to the children. The second approach bases citizenship on where a person is born. Typical emigration countries, such as states in Europe, prefer jus sanguinis, while traditional immigration states like the United States usually use jus soli to determine a person’s nationality.

2. Territory

The sovereign territory of a state includes airspace and, if the state is located on the sea, access to resources of the ocean. Internal waters such as harbors, lakes, and rivers and the sea up to 12 nautical miles from the baseline (the low-water mark on the coast) are under full sovereignty of the state. The territorial seas are subject to the right of innocent passage—namely, the right of ships to pass peacefully through these waters. Foreign ships in the territorial waters of a state may not threaten or use force, spy, deliberately pollute, violate immigration regulations, or use resources unauthorized (e.g., fishing). Beyond the territorial seas, the states can claim a contiguous zone, which extends another 12 nautical miles from the end of the territorial waters for the purpose of preventing or punishing “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea” (UN, 1982, Article 33, No. 1). The United States has claimed a contiguous zone in 1999. The exclusive economic zone extends for 200 nautical miles, within which a state has the right to access to all natural resources in the water and continental shelf (including fishing, mining, oil exploitation, scientific research, and artificial installations such as oil platforms). The state cannot control the access of ships, whether for peaceful or belligerent purposes, in the exclusive economic zone. If states are geographically close (adjacent or opposing, no international waters between them), the borders are determined by equidistance (line of equal distance from the baseline).

New states can be established through decolonization, split or dissolution (e.g., Czechoslovakia, Yugoslavia, and the Soviet Union), merger (North and South Yemen), absorption (of Eastern Germany into the Federal Republic of Germany), or annexation (e.g., Austria by Germany in 1938 or Tibet by China). The use of force to acquire territory is prohibited by the UN Charter (1945; see the following discussion). If states are created by the dissolution of existing states or in the case of colonial independence, the former administrative borders are the state’s new boundaries (a principle termed uti possidetis, Latin for “as you possess”).

3. Government and Capacity to Enter International Relations

A state’s government has to be effective, meaning that a state has to be able to fulfill the principle of self-determination and independence. Protectorates, self-governing territories (e.g., Puerto Rico), or states that have assigned their foreign relations to other states (e.g., the Principality of Liechtenstein to Switzerland) do not meet this criterion. The fact that self-determination plays such a crucial role defining states has led to the understanding that even some separatist movements enjoy recognition as actors of international law (e.g., the Palestine Liberation Organization).

Although not explicitly mentioned in the Montevideo qualifications, a state is evidently unable to enter international relations without recognition by other states. To enter international relations, states deploy ambassadors to serve as representatives of their interests. In some cases, state recognition is conditional on criteria such as democratic government, respect for human and minority rights, observance of existing borders, and commitment to disarmament and nuclear nonproliferation (see, for example, the criteria of the European Community in the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 1991). Recognition of states has to be distinguished from the recognition of governments. The nonrecognition of a government usually leads to the discontinuation of diplomatic relations (e.g., the United States has no formal diplomatic relations with Iran).

Recognition of a state is a political, not a legal, decision. Kosovo, for example, which declared its independence in February 2008, has been recognized by many Western states but not by the traditional allies of Serbia. Abkhazia and South Ossetia, the two separatist regions of Georgia, have been recognized only by Russia and Nicaragua.

B. Nonstate Actors

1. Individuals

Individuals were only objects of classical international law. If the rights of individuals were violated by another state, the state could adopt claims on behalf of its nationals, a practice known as diplomatic protection. Since the establishment of the United Nations, individuals are subjects of international law, which means that they have rights and responsibilities. The rights are generally referred to as human rights; the responsibilities are covered by international criminal law.

a. Rights

Individual rights are laid down in various human rights documents and monitored by an array of institutions. The principal document is the Universal Declaration of Human Rights (UDHR), created in 1948, which establishes the basic principles and protections of individuals. The most important rights include the right to life, liberty, and equality; due process; freedom from discrimination and torture; freedom of speech, religion, and assembly; the right to self-determination of peoples; and minority rights. The rights in the UDHR were integrated in two treaties, the International Covenant on Civil and Political Rights (ICCPR), created in 1966, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), created in 1966. In addition, specific human rights treaties focus on a particular crime (such as the Genocide Convention of 1948 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT] of 1984) or on protecting a special group of people (e.g., the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention on the Elimination of All Forms of Discrimination Against Women of 1979, and the Convention on the Rights of the Child of 1989). With the exception of the Genocide Convention, these treaties have monitoring bodies that oversee the implementation of the treaty. Other human rights bodies, such as the Human Rights Council (the Commission on Human Rights until 2006) or regional institutions implementing regional human rights treaties (the European Convention on Human Rights, a court; the Inter-American Convention on Human Rights, a commission and court; and the African Charter on Human and Peoples’ Rights, a commission and court), protect and implement human rights (Claude &Weston, 2006; Donnelly, 2003; Steiner,Alston, & Goodman, 2008).

b. Responsibilities

Individual responsibilities generally relate to piracy and crimes implying individual criminal responsibility. Individuals can be held responsible for acts that constitute a violation of international obligations (e.g., the prohibition of hijacking, hostage taking, torture, or international terrorism) or so-called atrocity crimes, such as genocide, war crimes, crimes against humanity, and other offenses covered by the statutes of the international criminal tribunals (the International Criminal Tribunal for the Former Yugoslavia [ICTY], the International Criminal Tribunal for Rwanda [ICTR], and the ICC). Individuals who commit any of these crimes are subject to universal jurisdiction, which means that perpetrators can be prosecuted for these crimes by any competent national or international court regardless of where the crime was committed and regardless of the perpetrator’s nationality (see Cassese, 2008; Cryer, Friman, Robinson, & Wilmshurst, 2007).

2. International Organizations

International organizations are collectivities of states. They can take many forms—they can be bilateral, regional, or global in scope and might address narrow or broad concerns. Accordingly, the rights and duties of international organizations vary widely. While some international organizations enjoy international legal personality and are recognized as international actors (the UN, for example), others are not. To establish international legal personality, international organizations have to possess a constituent treaty (charter), are created on the basis of international law, and have an organ that is independent from its member states (see also Research Paper on International Organizations and Regimes). The first international organizations developed in the 19th century and regulated specific issues such as international mail and telecommunication (in fact, the Universal Postal Union was the first international organization, created in 1865), weight and measurement standardization, and prevention of diseases. The first universal organization that aspired global membership and covered a variety of international issues was the League of Nations (founded in 1919), the predecessor of the United Nations. The League of Nations made important progress with the codification of international law and contributed to the development of minority rights and rules addressing social services. The UN is today the most important international organization and has a major impact on the development of international law. The most important legislators are the UN General Assembly and the UN Security Council. The General Assembly enacts only legally nonbinding rules (see the aforementioned soft law), while all member states are bound by the decisions of the Security Council. The most important decisions of the Security Council are made in relation to Chapter VII of the UN Charter, which deals with threats to and breaches of peace or acts of aggression. The Security Council can authorize coercive (economic sanctions or military intervention) and noncoercive measures (diplomatic interventions or good offices) to counter violations of international peace and security. In addition, regional organizations have added to the development of international law. Some organizations, most notably the European Union, have developed separate legal systems combining national and international law.

V. Special Topics

A. The Law of Armed Conflict

The law of armed conflict is generally divided into two categories: jus ad bellum (Latin for “just war”), which determines whether a state is allowed to use force, and jus in bello (Latin for “law of war”), which governs the law of armed conflict (see, generally, Kennedy, 2006; Kolb & Hyde, 2008).

1. Jus ad bellum: The Use of Force

Article 2 (para. 4) of the UN Charter (1945) prohibits the “threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” (Article 2, para. 4). What exactly constitutes the use of force is unclear, but according to a 1974 UN General Assembly resolution defining aggression, the use of force includes, among others, the invasion of one state of another (e.g., Iraq’s invasion of Kuwait), bombardment by one state of another (e.g., when NATO bombed Kosovo in 1999), blockade of another state’s coast or harbors (e.g., during the Cuban missile crisis in 1962), and attacks of another state’s armed forces. The only exceptions from the prohibition of the use of force are self-defense against other states (Article 51 of the UN Charter) or if the UN Security Council authorizes the use of force (under Chapter VII of the UN Charter). In the aftermath of the terrorist attacks on the United States on September 11, 2001, the UN Security Council extended the right to self-defense to international terrorism.

Beyond these two exceptions, the use of force is a controversial topic. Preemptive measures, for example, are only permitted if an attack is imminent. Or self-defense has to be necessary and proportional. What imminent and proportional mean depends on the circumstances, which gives room for various interpretations and misuse. The right to use force in humanitarian emergencies such as genocides or crimes against humanity without the authorization of the UN Security Council is subject of an ongoing debate. Recent developments point to the potential future permissibility of humanitarian interventions under certain preconditions and with UN involvement (see International Commission on Intervention and State Sovereignty, 2001). Regardless, if the use of force is legal or not, states have to abide by the rules of the international law of war (see, for more details, Gray, 2008).

2. Jus in bello: International Humanitarian Law

International humanitarian law comprises the laws of armed conflict and defines the duties of states engaged in warfare, the obligations of neutral nations, and the rights, protections, and responsibilities of individuals. The most important documents are the Hague Conventions (1899 and 1907), regulating the conduct of warfare, and the Geneva Conventions (1949), focusing on the protection of victims of armed conflict—that is, wounded soldiers, prisoners of war, and civilians.

By the end of the 19th century, military technology advanced to a point where weapons could inflict unnecessary suffering on soldiers (e.g., so-called dum-dum bullets, which expand on impact and lead to extraordinary suffering and difficult medical treatment). In 1899 and 1907, heads of states met in The Hague to establish the rules on how states should conduct warfare (these meetings are generally referred to as Hague Peace Conferences). States laid down the principles of international humanitarian law—namely, the need to protect persons or property unless militarily necessary; the need to distinguish between military and nonmilitary (civilian) targets (known as positive discrimination); the need to identify actors under international humanitarian law (a group participating in warfare has to have a hierarchical structure, distinctive emblem, carry arms openly, and respect the laws of war); the rule of proportionality (military objectives have to be weighed against possible collateral damage to civilians and nonmilitary property); and in general the need for humanity in armed conflict. The Hague Regulations prohibit the use of poisonous gas; the killing of soldiers who surrendered; and attacks on undefended towns and buildings marked as religious, art, science, historic monuments, and hospitals. In addition, in case of occupation, the occupying force is responsible for the welfare of civilians living on the occupied territory and may not cease civilian property.

The four Geneva Conventions (1949) deal with the protection of the wounded and sick soldiers on land (I) and sea (II), prisoners of war (POW) (III), and civilians (IV). All four Geneva Conventions share common Article 3, which deals with “armed conflict not of an international character,” stating that POWs and civilians have to be treated humanely, may not be taken hostage or subjected to acts of violence, and have the right to due process. This is the only provision that applies to noninternational conflicts and is considered the minimum standard for warfare. An “armed conflict not of an international character” is any conflict that does not occur between two or more states. This includes internal conflicts, civil war, ethnic conflict, and international terrorism (e.g., al Qaeda versus the United States).

In addition to the Geneva Conventions, two Additional Protocols adopted in 1977 address the protection of victims of international armed conflict (Protocol I) and noninternational armed conflict (Protocol II). The Additional Protocols revisit and clarify some of the Hague and Geneva regulations and expand the rules to new standards, which include, for example, the protection of the environment. The United States has not ratified either protocol on the grounds that they give too much protection and legitimacy to nonstate actors, particularly terrorists, but it has incorporated most of the Protocols’ contents in its internal manuals. In 2005, a third additional protocol (Protocol III) was adopted to create a new emblem, known as the red crystal, to complement the already existing red cross and red crescent.

The implementation of international humanitarian law is the task of the International Committee of the Red Cross (ICRC, n.d.). The ICRC “is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance” (para. 1). Besides fostering the development of international humanitarian law, the ICRC plays an important role in monitoring prison standards, responding to humanitarian emergencies, and coordinating national Red Cross societies (see, for an overview of international humanitarian law, Dinstein, 2004, and the ICRC website).

B. International Economic Law

One of the most important objects of international law is the global economy. As mentioned previously, the establishment and regulation of trade relations between sovereign entities is one of the oldest areas of application of international law. International economic law includes the rules of international commerce, the regulations of the international trading and monetary systems, and the principles of international development and investment.

International commercial law derived from the lex mercatoria and the lex maritima, two bodies of law that existed since the Middle Ages. Today, international private law deals with international transactions, contracts, and dispute resolution between private actors across international borders.

International trade and monetary law is concerned with the global market. The primary focuses are tariffs (import taxes on foreign goods) and quotas (limitations of quantities of imported goods). The most important actors concerned with international trade and monetary law are the International Monetary Fund (IMF), the World Bank Group, and the World Trade Organization (WTO, the successor organization of the General Agreement of Tariffs and Trade, or GATT, regime). The IMF oversees the global financial system with the goal to stabilize international exchange rates and foster development. The World Bank offers loans, advice, and support to developing states with the aim of reducing poverty. The key elements of the WTO are trade equality, dispute settlement, and the removal of tariffs. All three organizations have made an important impact on international relations, and some scholars see the future of international law in the regulation of the international economy (Bederman, 2006; Lowenfeld, 2008; Qureshi & Ziegler, 2007).

C. International Environmental Law

International environmental law has developed over the past decades because of the realization that a state should not use its territory or resources to harm another. Early cases deal with the regulation of air and river pollution, which led to the so-called polluter pays principle. The realization that many environmental issues cross borders and go beyond pollution led to a new awareness that what needed to be addressed was not only the consequences of human behavior on the environment, but also the values of environmental protection and guidelines for precautionary measures before action is taken. The central debate today is concerned with the relationship between economic development and environmental protection. Sustainable development—namely, to support economic growth in a way that is sustainable to the environment—is the attempt to reconcile the two seemingly opposing concepts.

International law has developed different approaches to environmental protection. First, liability and compensation regimes hold states responsible for actions that hurt the environment. These regimes have proven difficult to implement because they are very hard to negotiate. Second, the duty to consult and notify imposes the obligation on states to notify other nations about environmental problems and emergencies. Third, the regulation of pollutants, for example, by establishing emission limits, and the establishment of environmental standards that have to be met, has led to some progress. The 1997 Kyoto Protocol, part of the 1992 UN Framework Convention on Climate Change, set the goal of a 6% reduction of greenhouse gases from the 1990 levels by 2012. Fourth, the permission approach allows different scenarios depending on the pollutant (e.g., black lists of prohibited materials or white lists of materials with few or no restrictions; this scheme plays a role in regulating waste such as ocean dumping, chemicals, and pesticides). Along the same lines, the Kyoto Protocol established a scheme for emissions trade. Finally, the strongest approach is generally if environmental protection is linked to trade and economic interests. The Convention on International Trade in Endangered Species, for example, limited the trade of rare animals and plants and therefore eliminated incentives for investors (Birnie, Boyle, & Redgwell, 2009).

VI. Conclusion

International law has both widened and deepened since the beginning of modern international law in the 17th century. It has widened to include not only European nation states and European thought but also ideas, values, and issues from other areas of the world. International law today is truly global. At the same time, international law has deepened by going beyond the traditional issues of war, trade, and the law of the sea and includes now international environmental concerns and international criminal law. The sovereignty of states has become permeable—values such as human rights cross borders, and actors such as international organizations play increasingly important roles in international relations. New threats such as weapons of mass destruction, genocides, international terrorism, global poverty, and environmental issues will be a challenge for international law in the 21st century. These problems can be addressed only through a comprehensive approach, which will be made possible by the interconnection and collaboration of different parts of international law.

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