international law

internati
onal law, TABLE OF CONTENTS
the body
of legal Introduction

rules, The nature and development of

norms, international law
Jeremy Bentham and Sources of international law
Jeremy Bentham, detail of an oil standards States in international law
painting by H.W. Pickersgill, 1829; in that apply
Nonstate actors in international law
the National Portrait Gallery, London.
between
Current trends
sovereign
states and other entities that are legally
recognized as international actors. The term
was coined by the English philosopher Jeremy Bentham (1748–1832).

The nature and development of international law

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 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 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 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.
Hugo Grotius The essence of the new approach, however, can be more
Hugo Grotius, detail of a portrait by directly traced to the philosophers of the Spanish Golden
Michiel Janszoon van Mierevelt; in the Age of the 16th and 17th centuries. Both Francisco de
Rijksmuseum, Amsterdam. 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 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, 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.

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 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 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).

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.
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.

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.”

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 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

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.

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 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
Stimson, Henry L. that has been reinforced since the end of World War II. In
Henry L. Stimson. 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 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.

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
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 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 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 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.

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.

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
September 11 attacks Council decision giving appropriate authorization (e.g.,
 Hijacked airliner approaching the the decision to authorize the use of force against Iraq by
south tower of the World Trade Center.
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. 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.

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 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).
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.

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).

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 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.
Malcolm Shaw

Citation Information
Article Title: international law
Website Name: Encyclopaedia Britannica
Publisher: Encyclopaedia Britannica, Inc.
Date Published: 08 May 2024
URL: https://www.britannica.comhttps://www.britannica.com/topic/international-law
Access Date: June 01, 2024