INTERNATIONAL LAW

note:Although the following article has not been revised for this edition of the Encyclopedia, the substantive coverage is currently appropriate. The editors have provided a list of recent works at the end of the article to facilitate research and exploration of the topic.

International law is the system of rules and principles governing relations at the interstate level. It originally developed in response to the needs of states but in recent times has grown to include international organizations and, to some extent, individuals.

International law as a systematic body of rules began in Europe in the seventeenth century. Before then, and from earliest history, rules existed governing the interrelations of various groups of people (Nussbaum 1958). But the rules were systematized in Europe only when the contacts among peoples became regular and frequent and the idea of a single ruler for all known society foundered. That occurred with the collapse of the Holy Roman Empire during the Thirty Years War (1618–1648). The state system developed in its place, characterized by a number of kingdoms and principalities, each equal to the others, sovereign within its own borders, and subject to no outside sovereign. Hugo Grotius, a Dutchman who lived during this time, wrote a seminal book, De Jure Belli ac Pacis (1620–1625), describing legal rules, derived from natural law, by which these states could achieve peaceful coexistence and, when they failed, how they could conduct their wars with some semblance of humanity. His book popularized international law, and he is generally considered the founder of international law.

The rules and principles Grotius described reflected the characteristics of states. The fundamental notion that states were sovereign and equal became a principle of international law. And because the rulers of states respected that principle as law, they were less likely to wage war or to annex their neighbors. International law helped create the success of the state system and in turn reflected the features of the system.

Grotius derived his rules from natural law, thus suggesting that nature was superior to states. By the nineteenth century, however, theorists abandoned natural law as a source of international law. Instead, they looked at the behavior of the states themselves as the source of international law. International lawyers became positivists, and the state became for international law the ultimate political entity. The rules of international law could guide and could set out regular procedures to ensure the smooth and peaceful conduct of international relations, but they permitted states wide prerogatives. Governments acquiesced in international legal rules because their states benefited from an orderly system of international relations in which they gave up few of the attributes of absolute sovereignty. For example, the rules did not speak to what states did internally, no matter how egregious. Individuals were not considered subjects of international law. Nor did the rules restrain states from the use of force. International law described permissible uses of force, but states could in effect use force whenever they chose.

By the twentieth century pressures for change began to develop. Technological advances in war and communications accounted for movements aimed at restraining states in their use of force and abuse of human beings. People such as Elihu Root, U.S. Secretary of State in Theodore Roosevelt's administration, wanted international law to provide the vehicle for restraint. Governments started experimenting with dispute settlement through arbitration and courts. They formed the League of Nations to help them control states' uses of force. International law and international institutions were being substituted for unbridled state sovereignty. The concept was a radical departure from the past and came about only over the course of half a century and two world wars.

After World War II, governments were willing in theory to contemplate real restraints on their ultimate sovereign prerogatives. The United Nations was created as an entity under international law. Its charter committed states to uphold human rights, to cooperate in solving world problems, to abandon the use of force, and to follow the commands of the organization itself. The idea was to lessen state sovereignty for the good of the whole world community. Thus, the state began to lose its place as the ultimate political entity almost exactly 300 years after its rise.

Certain international legal norms are now theoretically superior to the wills of the states. In other words, a certain amount of natural law now characterizes the system again. In addition, the state is making way for other types of political institutions such as regional arrangements, although if the state should ever become finally obsolete so will international law. The current form of international law and many of its rules and principles presuppose a system of coequal entities without a single sovereign.

While the state system remains intact, however, international law has taken on an increasingly important role in governing the relations of states in an interdependent, technologically linked world. It does this even though international law has never had the institutions typical of domestic law: a legislature for making law, an executive to enforce it, and a judiciary to adjudicate and interpret it. In some respects international law still functions as it did in the nineteenth century because the system benefits the state. Nevertheless, law does get made, enforced, and adjudicated, and social movements are at work putting demands on states to form and live by new norms of international law.

Because of the informal condition in which international law exists, however, some legal thinkers argue it is not law at all but rather moral precepts or mere guidelines. Most prominent of these thinkers was John Austin, who described law as a series of commands backed by sanctions. International law has no overarching authority to issue commands, and the sanctions are irregular. But Austin's criticism depends on his definition of law. If law is defined as behavior or behavioral restraint induced by a sense of obligation, international law, in its sphere, is law. Positivist international lawyers also point out that in the end the states acknowledge that international law is law, and that is the relevant indicator.

International legal rules have two basic sources: custom and treaty. Rules of customary international law are created through practices that states engage in because they believe they have a legal obligation to do so. Treaties are the explicit agreements states make with each other to be bound. As the need for international law has grown, states have relied on treaties as a law-making vehicle more and more. The general multilateral treaty has become a common form of law making for important international concerns. For almost ten years nearly every state of the world attended a conference to negotiate a comprehensive treaty on the law of the sea. Because so many states attended and the treaty was so long in the making, the treaty began to take on the characteristics of customary international law, irrespective of its status as a treaty. A similar conference will convene in 1992 to discuss climate, and suggestions have been made to convene such a conference for trade.

When no rule of custom can be found and no treaty exists, international courts have in some disputes turned to a third source of law—general principles of law. These are principles commonly found in domestic legal systems and can serve to fill any gaps in international law, which suffers from its ad hoc law-making process. Theorists consider general principles a subsidiary source of international law because general principles are not made in a positive sense by all the states of the system, and they may be applied to a state that did not wish to be bound by them. Custom and treaty, however, generally allow states to opt out of a rule, thus reflecting the traditional view that the states are superior to the system of law. In the last thirty years, however, states have accepted that certain principles cannot be derogated from because they are considered peremptory norms or jus cogens. Examples of such norms are the prohibitions on genocide, the slave trade, and the use of force to advance a state's political agenda. With the concept of jus cogens, international law has again taken on some elements of natural law.

Jus cogens also exemplifies the extent to which international law has overcome cultural relativity. As new states emerged in the 1960s, scholars from these states questioned whether international law should be binding on them since it was a European product that had aided in perpetuating colonialism. These criticisms have faded, however, because it became clear that international law also created the thing desired most by newly independent countries—statehood. Moreover, because international law is made by states, the new majority could begin to re-create international law. The process of international law has succeeded to the point of bringing states together in accepting that certain principles are overriding, despite the particular value systems of individual states.

Like the law-making system, the law-adjudicating system in international law depends on states volunteering to use it. The system does have courts, in particular, the International Court of Justice. But no state needs to subject itself to the court unless it wishes to do so. The court does have limited compulsory jurisdiction in the case of states that agree to submit cases to it in advance of disputes arising. Nicaragua brought a case against the United States under such an agreement in 1986. States can also agree on an ad hoc basis to submit disputes to arbitral tribunals. The vast majority of international law is adjudicated informally, however. If a state violates international law, such as when Iraq invaded Kuwait in 1990, most states in the system will pronounce their views regarding the legality of the action. Assessing these evaluations leads to conclusions regarding lawfulness. Thus, states make and adjudicate the law themselves.

States also enforce international law themselves. International law is notorious for being poorly enforced. In fact, however, most international law is in fact observed most of the time. Because the states must agree to the law, they tend to make only the laws they want and are willing to live by. Otherwise they opt out of the rules, as the United States has done for some of the new law of the sea. Law is not so well observed, however, in those areas that make headlines—war, human rights, terrorism—which perhaps accounts for international law's poor reputation for enforcement.

When a rule of international law is violated, the state that is harmed is allowed to take action against the perpetrator. For example, if a fishing treaty between state A and state B is violated because state A's fishermen overfish in state B's waters, state B might be entitled to terminate the treaty and prevent future fishing by state A. This system works to some extent, but states have tried to improve on it in recent decades by, first, giving the United Nations and, in particular, the Security Council authority to police some violations of international law and to expand the ability of domestic institutions in enforcing international law by expanding the concept of universal jurisdiction.

The Security Council has authority to maintain peace. In article 42 of the U.N. Charter, it is given the power to call on member states to contribute troops to fight at the direction of the council. The idea comes very close to having an international police force. It has only been used once, however —in Korea in the 1950s. Other attempts have been stymied by the cold war antagonism of the United States and the Soviet Union, each of which has a veto over invocation of article 42. As a sort of substitute, the Secretary General has regularly sent troops, contributed voluntarily by U.N. members, to serve a peacekeeping role. Peacekeeping troops are not supposed to take enforcement action. But enforcement action may be a possibility again with the end of the cold war. Following Iraq's invasion of Kuwait in 1990, the council ordered worldwide economic sanctions and permitted the use of force, both to enforce the sanctions and to push Iraqi troops out of Kuwait.

Another solution to enforcement has been the widening of universal jurisdiction. To prevent states from interfering in each other's affairs, international law contains principles of jurisdiction defining when and where a state may enforce rules of domestic or international law. In some instances any state may take action. This concept of universal jurisdiction is as old as international law. It was originally developed to handle the problem of piracy. Pirates are defined as persons who commit crimes for profit on the high seas. Generally they do not fly any state's flag, and they act outside the territorial jurisdiction of any state. Typically, the state where the act took place or the state of the pirate's nationality would have jurisdiction, but those categories often do not exist for pirates. The state of the victim might have jurisdiction, but the international system developed the rule that any state may board a vessel that fails to fly a flag and that any state may arrest, try, and punish pirates.

After World War II, universal jurisdiction was expanded to include the concept of crimes against humanity. The victorious allied powers tried German and Japanese individuals, holding them personally responsible for human rights abuses, characterized as crimes against humanity and thus crimes for which any state in the world could take jurisdiction. The Nuremburg and Japanese War Crimes Trials broke new ground in international law by holding that individuals had rights and responsibilities not only under their nation's law but under international law and by expanding the scope of a state's jurisdiction.

Individual responsibility and expanded state jurisdiction are being included today in a variety of treaties, especially related to human rights, narcotics, and terrorism. Customary international law now permits universal jurisdiction over persons who have committed genocide or war crimes. The International Court of Justice has also suggested that important human rights may be enforced by any state regardless of its connection with the violation because the obligation to respect human rights is an obligation owed to all people; it is a right erga omnes.

International law will need these improvements in enforcement. The scope of questions now covered by international law grows annually with the increasing interdependence of the world and the technological advances that bring peoples into conflicting contact. The need to protect the global environment is the newest challenge for international law. States may soon decide they need an international organization to regulate the world trading system. The problems of development, health, communications, education, population, and use of space on earth and in outer space are all new problems in need of attention. Add to them the old problems of war, territorial disputes, governing international organizations, treaties, dispute resolution, refugees, human rights, diplomatic immunity, law of the sea, air space, recognition of new states, and so on, and the growing importance of international law becomes apparent. International law will continue to serve as a means of conducting smooth international relations, its traditional role, but it will also continue to assume new importance as a means of solving problems. In order to achieve this, however, international law must improve its institutions and be accepted by more states, whose own sovereignty will diminish as international law advances.

(see also: Genocide; Law and Legal Systems; Sociology of Law; War)

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Mary Ellen O'Connell