International Law

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INTERNATIONAL LAW.

SOURCES OF INTERNATIONAL LAW
INSTITUTIONALIZATION, EXTENSION, AND CODIFICATION
THE LAWS OF WAR (INTERNATIONAL HUMANITARIAN LAW)
BIBLIOGRAPHY

International law comprises those rules and processes that are produced by states to regulate their mutual behavior, or that have arisen to regulate international transactions by states, private organizations, and individuals. Persons used to the certainties of municipal (that is, national or domestic) law are puzzled by several features characteristic of international law. No single authority acts as legislator or interpreter of the law. No court exercises compulsory jurisdiction over breaches in the law; sanctions are more often applied by the offended states, sometimes in the form of reprisal. And the sources of international law are not restricted to easily identifiable legislation issuing from an agreed-upon political process. Further, international law seems often ineffective, and surely some of the most catastrophic and murderous transgressions against it occurred during the bloody twentieth century. But Immanuel Kant (1724–1804) recognized that conflict and strife not only challenge the law, they also create it, as states attempt to solve the problems they have caused. And so the twentieth century saw not only the greatest crimes against, but also the greatest extensions of, international law in the areas most troubling to its success: the (as yet) incomplete creation of international cooperative authority in the League of Nations (1919), the United Nations (1945), and the European Union (1993); the establishment of a permanent Court of Arbitration (1899), which developed into the permanent International Court of Justice (ICJ, 1945), and a permanent International Court of Criminal Justice (ICC, 2003); the writing down (codification) of legal custom and the specification of the law's sources; and finally the expansion of the laws of war, which restricted the permitted methods of fighting as they widened the scope of recognized human rights.

The "Martens Declaration" in the preamble to the Hague Regulations (1899)

[I]n cases not included in the Regulations … populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.

SOURCES OF INTERNATIONAL LAW

The sources of international law are enumerated in Article 38 of the Statute of the International Court of Justice

Treaties between states are by far the most unambiguous and numerous sources. The League of Nations began the requirement of publicly registering treaties, and its successor the United Nations has recorded more than twenty-five thousand.
Custom, that is, the actual practices of states or collective actors, is the original form of international law, before it was written down. Custom is wider than treaties, because it applies to all actors in the international community, not just to those who have explicitly agreed to a written rule, for example, by ratifying a treaty. And custom changes over time, so it is naturally controversial. Some rules, such as the Geneva Conventions of 1949, which originally applied only to signatories, have since been accepted as customary and are taken to apply to everyone.
"The general principles of law recognized by civilized nations" is the third source. In the seventeenth century, the Dutch jurist Hugo Grotius (1583–1645) laid the foundations of international law in his De Jure Belli Ac Pacis (1625; The rights of war and peace) , and through the eighteenth century these principles were known as natural law. In the first international codification of the laws of war at the First Hague Convention (1899), the Russian jurist Fyodor F. Martens called them "the laws of humanity." In the early twenty-first century they are known as jus cogens (compelling law). By any name they refer to principles basic to all law and human action and that are thus prior to and superior to positive, written law.
Judicial decisions also make international law. These may be judgments by the permanent courts (ICJ, ICC), by special tribunals such as the International Military Tribunals after World War II or by national courts, since most international law cases are tried in national venues.
"The most highly qualified publicists of the various nations" also help determine law by discovering the patterns of custom or interpreting law, practices, and public opinion.
Equity, that is, basic principles of fairness, may also play a role in deciding cases in international law.

INSTITUTIONALIZATION, EXTENSION, AND CODIFICATION

The world wars before 1945, the civil wars thereafter, and the mass death caused by them all have driven international law to change in broadly three ways: it has become institutionalized, extended, and codified.

Institutionalization has occurred on several levels. International cooperative institutions such as the League of Nations and the United Nations simultaneously uphold and limit the sovereignty of their members, for example, by subjecting them to the human rights provisions of the UN Charter as a condition of joining. Regional security or economic organizations, such as the North Atlantic Treaty Organization or the Western European Union, have also burgeoned since 1945. The European Union, developing from the Organization of European Economic Cooperation (1948), has become so strongly integrated in economic, political, security, citizenship, and legal terms that it constitutes a new kind of federated state. Its various organs, including the European Parliament, European Court of Human Rights, and the European Court of Justice have produced abundant "European law," a subset of international law. Finally, international law is practiced and formed by nonstate institutions. The oldest is the International Committee of the Red Cross (ICRC), a private Swiss organization founded in 1874 to aid wounded soldiers. In order to gain the acceptance and cooperation of suspicious belligerent states, the ICRC had to assume a stance of neutrality and public discretion unique among nongovernmental organizations (NGOs). Its diplomatic savvy and expertise have allowed it to play a leading role in expanding the scope of the laws of war. Since the 1960s other, more partisan NGOs, such as Human Rights Watch or Doctors without Borders, have driven international law forward by providing information on current breaches of the law and by arousing public opinion to demand international intervention and sanctions.

Institutions do not work magic. The Hague Conventions (1899, 1907) did not achieve the disarmament for which they aimed, and the League of Nations and the United Nations have not provided universal security or peace. States have jealously guarded their sovereignty against legal limitations and have been reluctant to risk money or blood to uphold law; the League was famously undercut by the unparalleled, ideologically motivated lawlessness of Italian fascism, German National Socialism, and Soviet communism. But these institutions have all been successful in incrementally expanding the breadth and depth of international law.

The League did so, for example, by anchoring the sanctity of treaties (pacta sunt servanda) in its founding articles, protecting national minorities in treaties with the successor nations in eastern Europe, fostering arbitration of disputes, and creating subsidiary organizations (such as the International Labor Organization and the High Commissioner for refugees) to supervise areas of potential conflict. The League's template was then improved upon by the much more active United Nations. It established the first International Military Tribunal to try war crimes (1945–1946). Its subsidiary organizations create international regulations on everything from children (UN International Children's Emergency Fund, UNICEF) to culture (UN Educational, Scientific and Cultural Organization, UNESCO). The United Nations actively promotes the codification of international law in all areas. It does so partly in response to the huge growth of trade, commerce, communications, and transportation that are now labeled "globalization." Human activity is less constrained by national borders than ever before, and as international commerce, in every sense, grows, so will international law.

One might imagine the enormous spread of international law, especially since 1945, as occurring in three dimensions: spatially, thematically (that is, what sorts of areas are now regulated), and in terms of the subjects of law (that is, states, private organizations, and/or individuals).

As one can see from the ICJ's phrase "principles of law recognized by civilized nations," statesmen and lawyers originally thought of international law as limited to the West. But the law typically tends to expand by analogy. The British, for example, decided in 1900 that the Boer War, which they were fighting in South Africa, should fall under its sway. Whether the limits and protections of international law should apply to colonies was always controversial, but by the 1960s decolonization had solved the problem, as colonies became nation-states, members of the United Nations, and incontrovertibly part of the international community.

Increasingly, international law reached into the uninhabited areas of the earth and beyond. International treaties regulated the Arctic (1933), the Antarctic (1959), the sea floor (1982), and outer space (1976). True to Kant's principle, it was conflicts among nations newly active in these areas that produced the international law to govern them.

The same principle applies to the expansion of international law into new thematic fields. In 1900, international law concerned war, the sea, treaties, diplomacy, merchants, and the recognition and succession of states. By 2000 it focused also on international arbitration, refugees and immigration, trade, organized crime, international organizations, international financial law and taxation, state responsibility, the environment, and human rights.

In the nineteenth century international law was taken to be a law of states; states and their representatives (ambassadors, soldiers) were the only ones who had duties and rights under it. That has now radically changed. Individuals and their welfare are now an important focus of international law. Especially since 1945, the protection of civilians has promoted an astonishing catalog of human rights, most notably in the UN General Assembly's 1948 passage of the Universal Declaration of Human Rights. These go far beyond the minimal right to "life, liberty and security." They include the full panoply of liberal civil-political rights and also the socioeconomic and cultural rights ("to social security," work, a living wage, leisure time, and education) that socialists had put on the human agenda in the mid-nineteenth century. Human rights law is currently one of the most active sectors of international law.

If at the beginning of the twentieth century international law suffered from undercodification, some observers fear that it has become overcodified. They foresee three dangers. Committing the law to writing tends to freeze it, making it less able to respond to changing conditions. One of the advantages to (unwritten) custom was precisely its adaptability. A second problem lies in normativity. International law strives to reflect reality, including real force relations and actual practices. Some legal experts think that since the 1970s, codification has rushed ahead of practice and therefore contains too much "soft" law, that is, injunctions or "oughts" that make the law unlikely to be followed. That produces the third problem: it encourages scofflaws and undermines respect for law in general. This debate has nowhere been stronger than regarding the laws of war.

THE LAWS OF WAR (INTERNATIONAL HUMANITARIAN LAW)

The Laws of War, now called International Humanitarian Law (IHL), are in many respects the oldest and best-developed part of general international law. IHL has two parts: the law governing when it is permissible to engage in warfare (jus ad bellum), and the law regulating how to fight war (jus in bello). The purpose of jus in bello is "to alleviate, as much as possible, the calamities of war" and to prohibit practices that "uselessly aggravate the sufferings" of soldiers or civilians (Declaration of St. Petersburg, 1868). IHL is not designed to prevent war, to change power relations, or to make fighting war impossible. It must therefore be realistic in its assessment of weaponry and military requirements. Its codification in the nineteenth and twentieth centuries has always involved not just statesmen and lawyers but also military officers. During its centuries-long history IHL has developed principles that are then extended analogously to fit new situations and technologies. Three of the most important are: proportionality (destruction must be proportionate to the military gain), absolute prohibition (not everything goes in war, even in extremis), and discrimination (between soldiers, who are a legitimate target for killing, and civilians, who are not). In the twentieth century the protections of IHL have been extended from an almost exclusive focus on combatants to include civilians, whose increasing rights under international human rights law have steadily narrowed the permitted scope of military action. However, supervision and enforcement remain major problems.

By the time World War I broke out in 1914, IHL consisted of two domains of positive (written) law. The "Geneva" side protected soldiers no longer capable of fighting (the wounded, sick, or captured) and those who ministered to them, including the civilians of the Red Cross. These rules were set down in the Geneva Convention of 1864 and revised in 1906, 1929, and 1949. The "Hague" side regulated armed conflict itself. Since 1945 the tendency has been for Hague and Geneva law to fuse together.

The Hague Regulations Concerning the Laws and Customs of War (1899, 1907) were the first codification of the customs governing warfare, worked out by mostly Western states. Disagreements between large and small, and land and naval, powers restricted the rules' scope. They recognized, some would say too much, the legitimacy of military necessity in annulling legal curbs to destruction, but they limited recourse to that excuse to a few specific circumstances. The rules protected civilians by limiting bombardment and draconian occupation techniques but were silent on reprisals, concentration camps, forced labor, and deportations. The debate about the right of enemy civilians to resist occupation produced a wider definition of a combatant, who could now be a militiaman or civilian volunteer, so long as he or she was part of an organized force, recognizable as an enemy, carrying arms openly, and obeying the laws of war. The preamble underscored the important principle that international law has force even beyond written treaties.

World War I shocked contemporaries by the endless casualties, the terrific mistreatment of occupied civilians, and the use of horrifying new weapons (gas, tanks, submarines, airplanes). Allied propaganda sensationalized the (many) German violations, but the Allied blockade, which broke provisions of the Declaration Concerning the Laws of Naval Warfare (London, 1909), which many observers took to be customary law, starved hundreds of thousands of enemy civilians. The postwar attempt to try war criminals ("Hang the Kaiser") was thwarted by considerations of political expediency and state sovereignty, except in Turkey, where some officials responsible for the Armenian Genocide of 1915–1918 were tried and even executed before the regime of Kemal Atatürk stopped the trials.

Disappointment with the efficacy of international law may have led to a concentration in the interwar years on preventing war rather than refining jus in bello. Both the League of Nations' founding articles and the Kellogg-Briand Pact (1928) reflect that sentiment. Nevertheless, Hague law was extended to cover aerial warfare (1923), prohibit poison gas (1925), and regulate submarines (1936). Attempts were under way to give occupied civilians greater protection under "Geneva" law when World War II began in 1939.

World War II appeared to obliterate IHL. The relatively humane treatment of most prisoners of war on the western European front and the avoidance of gas warfare were two of the few areas in which law appeared to work. Many factors canceled it altogether. National Socialist racial ideology launched a war of extermination in which millions of civilians and Soviet prisoners of war died. The Soviet Union responded with terrific ferocity. The Western Allies' area bombardment of cities was the complex result of an early inability to strike the enemy directly in any other way, retaliation, the desire to protect their own soldiers, and the air forces' military culture reaching back to World War I.

The seeming nadir of IHL led to systematic attempts after 1945 to make it stronger and more effective. Those attempts began immediately with the International Military Tribunals at Nuremberg and Tokyo, which inaugurated the legal concept of "crimes against humanity" and institutionalized the principle of individual responsibility, both for soldiers following illegal orders and for heads of state pursuing murderous policies. The Geneva Conventions of 1949 went further by giving national courts universal jurisdiction and responsibility to pursue and try war criminals regardless of where or against whom the crime was committed.

IHL, responding to the catastrophes of the past and to the interests of the victors, develops unevenly. Nuremberg ignored Allied bombardment and Soviet rapes and massacres. But civilian suffering obviously demanded protection. Immediately after the war the ICRC and then the United Nations pushed to revise the Geneva Convention. In 1949 their efforts produced international consensus extending protections listed in 417 articles to the classic "Geneva" groups: the wounded, sick, and captured combatants, at sea as well as on land. The fourth convention now also covered civilians in enemy hands. Besides universal jurisdiction, the Geneva Conventions contained two other novelties. They required signers to uphold its terms even if their foes violated them, thus rejecting the ancient principle of reciprocity. And the provisions cover not just international, but also domestic "armed conflict" (Common Article 3).

The extension of IHL to noninternational conflict was especially important because the nature of warfare changed after 1945 from predominantly interstate to anticolonial, civil, and guerrilla wars in which civilians were proportionately more victimized than ever before. Because IHL is supposed to apply to real practice, the ICRC proposed further changes and codification to reflect the new kinds of conflict. For the first time Third World nations played an active part in codification. The result was Additional Protocols (AP) 1 and 2 (1977) which nominally modified the Geneva Convention but which actually revised the Hague Regulations. AP 1 broke new ground in three areas. It protected even the enemy's civilians at home by narrowly defining permissible military targets and outlawing indiscriminate attacks (such as area bombing), methods of terror, starvation, and reprisals. It forbade "widespread, long-term and severe damage" to the environment. And it recognized guerrilla fighters as legitimate combatants, dropping the requirement that they always carry arms openly and be uniformed. Especially this last change was controversial and led many Western nations to withhold ratification. Opponents claim the APs make war impossible to fight and give unfair advantages to guerrillas; proponents reply that they simply recognize how wars are fought at the turn of the twenty-first century and that they protect vulnerable civilians. It was easier to reach consensus on the prohibition of land mines, booby traps, some incendiary devices, and fragmentation weapons invisible to X-rays (1981 UN Weapons Convention). However, neither napalm nor atomic weapons have been outlawed. These controversies and the continuing lack of adequate supervision and enforcement mechanisms (despite the establishment of the International Criminal Court) remain challenges to the operation of international law.