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International Law
 
By
Eric Brahm


September 2003
 

International law has emerged from an effort to deal with conflict among states, since rules provide order and help to mitigate destructive conflict. It is developed in a number of ways. First, law often comes out of international agreements and treaties between states. Treaties are the most important source of international law and also serve as the origins of IGOs, which in turn are important sources of law. Second, customary practices that have evolved over time often become codified in law. Third, general legal principles that are common to a significant number of states can become part of the corpus of international law. Finally, law arises from the community of international legal scholars. Particularly on more technical issues, their expertise is often accepted by political leaders.

The existence of law, however, does not mean that conflict is any easier to resolve.[1] Instead, as law becomes more elaborate and constraining, it becomes increasingly contentious. The powerful do not wish to be constrained in their ability to respond to threats. At the same time, developing countries see much of international law as being crafted largely without their input, primarily due to the so-called democratic deficit in intergovernmental organizations (IGOs), which now are typically the negotiating venues for the creation of new law.

In this essay, we discuss the origins of international law, and analyze how international law has evolved in the twentieth century, focusing on the individualization of international law. Finally, we examine some of the contemporary criticisms of international law.

Is International Law Real Law?

Perhaps the first question to ask is whether in fact international law is law at all. The primary distinction between domestic and international law is that the latter often lacks an enforcement mechanism. There is no government to enforce the law, as there is in domestic situations. International law is often as much a source of conflict as it is a solution to them. Most forms of international law are contested. Rarely is it agreed upon universally. As will be seen below, it is not enforceable unless powerful countries see it in their interest to do so. What is more, cross-cultural differences make its interpretation and implementation difficult. Another question is whether international laws can be considered law if they are not translated into domestic laws where there is greater potential for enforcement. By adapting international law into domestic statutes, governments theoretically provide enforcement mechanisms. There are also instances in which domestic law not only does not contain international law, but is in fact in contradiction to it.

Despite all of this, international law is often followed. This can be attributed in part to Great Power backing, but also much of international law is based on customary practice. International law may be enforced by states taking unilateral action if it is in their interest or through multilateral measures where sufficient consensus exists. Reciprocity can play a role, as benefits in other areas may be gained from following laws. In addition to ad hoc efforts to enforce international laws, a number of formal courts have been established for that purpose.

International Courts
Historical Origins

It can be argued that international law began in 1648 with the Peace of Westphalia, which asserted the sovereign equality of states. Rules concerning the conduct of war (jus ad bellum and jus in bello) soon emerged, most famously codified in the Geneva Conventions of the nineteenth and twentieth centuries. Organizations soon emerged to facilitate the creation of law and to mediate disputes. The League of Nations sought unsuccessfully to effectively outlaw war. Recently, the clearest source of international law has been the United Nations. The U.N. Charter defines the conditions for the legal use of force, and the U.N. has served as the principal negotiating venue for the creation of new international law. The most recent development has been international law targeting individuals rather than states, as is evidenced by the creation of the International Criminal Court. These issues will be taken up after a review of state-oriented courts.

The International Court of Justice

States have created an evolving collection of international institutions to facilitate the creation and maintenance of international law. The Hague Conference of 1899 established the Permanent Court of Arbitration, which was an institution to which states could come for dispute settlement. It was a forerunner to the Permanent Court of International Justice, created in the aftermath of World War I in 1921. It derived largely from the Treaty of Versailles, and laid the groundwork for the protection of minority rights. The Permanent Court of International Justice was reconstituted in 1946 as the International Court of Justice (ICJ), which is still in existence.

The ICJ was created as a judicial body to hear cases involving disputes between nation-states. It is made up of 15 judges, elected for nine-year terms. The judges are elected by the U.N. General Assembly and Security Council, based on nominations made to the Secretary-General. In order for the ICJ to hear a case, all state parties to the dispute must accept its jurisdiction. The ICJ remained marginal until the 1980s as the Soviet bloc rejected it, and Third World states soured on the idea after some early unfavorable rulings. After the ICJ ruled against the U.S. in the case brought by Nicaragua regarding the mining of Nicaraguan waters, however, it gained renewed credibility, the number of states recognizing its jurisdiction jumped dramatically, and its docket was flooded with cases.[2]

European Courts

Europe has seen the most dramatic development of supranational courts. The European Court of Justice is the sole judicial organ for the European Union. It is independent in its decision-making, and its purpose is to ensure that European law is followed. The court's independence is enhanced by the fact that only one judgment of the court is released, not individual positions. The Court is generally regarded as one of the most "European-minded" institutions in the E.U., in other words acting on the principles articulated for the E.U., rather than on state interests.[3] The European Court of Human Rights has been the most active of any international human rights court, with individuals utilizing it more to assert rights than in the resolution of interstate disputes.

The Inter-American Court of Human Rights

The Americas have also developed a significant regional court system. The Inter-American Court of Human Rights was established in the 1970s and has acted primarily as an advisory body; it has never heard a case. At times, it has been criticized as a tool for the United States to wield influence over its neighbors. However, it has also proven to be an important moral voice in the region, particularly as Latin American states have struggled with political transitions.

International Law and Conflict Management

States have long relied on treaties and other international agreements for security against war. The first important move beyond laws of war was the Kellogg-Briand Pact, signed by 63 countries in 1928, which condemned "recourse to war for the solution of international controversies" and foreswore war as an instrument of policy. However, the conflicts of the 1930s made this agreement moot.

Many of the core principles of international law related to conflict prevention have been incorporated into the U.N. Charter. They are:

  • the prohibition of the use of force unless in self-defense [Article 2(4)];
  • the primacy of national sovereignty [Article 2(7)], and
  • the advancement of human rights [Universal Declaration of Human Rights].

These principles often prove to be in tension with one another, however. This confusion was exacerbated by subsequent treaties, such as the 1948 convention for the Prevention and Punishment of the Crime of Genocide. In practice, the protection of human rights has placed limitations on respecting state sovereignty, and force has been deemed the only effective means to protect human rights on a number of occasions.

One of the clearest appeals to international law emerged with respect to Iraq's 1990 invasion of Kuwait. The Iraqi invasion was a clear violation of Kuwaiti sovereignty, and the ensuing Gulf War was a multilateral effort to enforce international law. The growing role of international law can be seen in the creation of the "no-fly zones" in Iraq via U.N. Security Council Resolution 688 of April 1991, which served as the legal precedent for a range of initiatives later in the decade, from Somalia to East Timor.

Initially, these actions were rationalized by arguing that internal conflict had effects that spilled across borders, but human rights discourse increasingly replaced this argument.[4] These principles of state sovereignty and human rights came into clear conflict in the war in the Balkans. Yugoslavia responded in part to Western threats by making appeals to international law. Yugoslavia sued the NATO countries in the International Court of Justice for aggression and genocide. The Court rejected the argument, but the legality of the Kosovo bombing remains uncertain.[5]

The question of terrorism has also become a difficult one for states to deal with using international law, particularly as targets become increasingly international. Some steps have been taken to address these issues. A number of conventions have been created to deal with issues ranging from aircraft hijacking to hostage-taking and abductions, but all suffer from lack of enforcement. Part of the difficulty in dealing with terrorism is a general lack of consensus over what groups and tactics would fall under such law. The law, however, still largely reflects an overly state-centric view that makes it difficult to deal with the growth of transnational groups. Taking action against groups often requires infringing on sovereignty, another core principle of international law.

Individualization of International Law

One of the most dramatic developments in international law has been the growth of laws focusing on the individual, which provide protection and require accountability. Whereas in the past, international law focused primarily on regulating state behavior and defining states rights, it has increasingly been involved in identifying individual rights and holding individuals accountable. This trend began after WWII. The identification of individual responsibility in the Nuremberg Trials after World War II was followed by the creation of the Universal Declaration of Human Rights by the United Nations. The Declaration passed largely because the Communist Bloc was abstaining at the time. In the years that have followed, there has been a proliferation of international covenants that have specified additional rights. The Yugoslav and Rwandan war crimes tribunals established by the U.N. in the 1990s, the International Criminal Court (ICC), and international covenants specifying additional rights, represent further developments.

Of the two war crimes tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has received the most attention. The ICTY initially suffered because it pursued only low-level criminals, assuming that peace negotiations required the participation of high-level leaders. Yet in mid-1995 Prosecutor Richard Goldstone indicted Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. The peace talks continued, and the former leaders became increasingly marginalized,[6] although they remain at large. States have often been reluctant to aggressively go after war criminals if their soldiers would be placed in harm's way.[7] The ICTY became more aggressive when it indicted Slobodan Milosevic, a sitting head of state, in May 1999 for crimes against humanity.

The International Criminal Court (ICC)

The events of the 1990s, and the perceived strengths and weaknesses of the ICTY, did much to draw renewed attention to the idea of a global criminal court. The forerunner of the ICC was modeled on programs such as the United Nations War Crimes Commission, which was established by the Allies in 1943. In the post-war years, the idea of a permanent court was much talked about, but was overshadowed by the Cold War and reemerged only in 1989 initially as a means to deal with the international drug trade. Both the ICTY and ICTR (International Criminal Tribunal for Rwanda) pointed to the need for a permanent body that would be a stronger deterrent and also could be more efficient, since the cost of a standing body could be less than the start-up costs of ad hoc bodies.

In late 1995, the U.N. General Assembly created the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom), which held a series of sessions over the next three years. Intense diplomatic activity ensued, culminating in a June-July 1998 diplomatic conference that resulted in the Rome Statute of the International Criminal Court. Jurisdiction over genocide, crimes against humanity, war crimes, and aggression was granted the ICC, although the latter crime awaits further diplomatic clarification. The statute entered into force in 2002 after the ratification by the requisite 60 countries. In early 2003, the judges and the Prosecutor were elected. Judges must be nationals of one of the State Parties (states that signed and ratified the agreement) and possess legal expertise. The judiciary must be balanced in a number of respects, representing: the major legal systems of the world; geographic areas; gender; and expertise on specific issues. The 18 judges are elected by the Assembly of States Parties and serve a single nine-year term. The Prosecutor and Deputy Prosecutor(s) are elected by an absolute majority of the Assembly of States Parties for a single nine-year term. Procedures have also been established for the early removal of judges and prosecutors, to ensure accountability.

Bringing a case before the ICC is a relatively long process. For the ICC to act, jurisdiction must be accepted by either the state where the crime was committed, or the state from which the accused came. If ICC jurisdiction exists, investigations may be initiated in a number of ways. A state-party can bring a case. The U.N. Security Council also can, even in circumstances where the jurisdiction outlined above does not exist. In addition, the Prosecutor may also initiate the process him or herself, although the Pre-Trial Chamber must approve of any investigation initiated by the Prosecutor by finding that there is a reasonable basis to proceed and that the case falls within ICC jurisdiction.

What is more, the ICC is meant to be complementary to national courts. Therefore, the ICC will not proceed if a State is or has been investigating the crime, unless the State is seen to be unwilling or unable to proceed. The ICC Prosecutor must notify all states that it is initiating an investigation, and states are able to assert a superior right to exercise jurisdiction. The U.N. Security Council can block proceedings through a positive resolution, but this prohibition lasts for only one year. Once a case has been initiated, the Prosecutor evaluates whether to proceed with the investigation. It is the job of the Pre-Trial Chamber to determine whether to issue warrants and orders requested by the Prosecutor. If the warrant is issued, after the accused has been informed of the charges against him or her, the Pre-Trial Chamber determines whether to confirm the charges. The trial would proceed from there.

The strength of the ICC remains to be proven, particularly since the U.S. does not support the court. The U.S. is concerned that its troops on peacekeeping missions would be subject to prosecution that might be politically motivated. The U.S. would also like the Prosecutor to have less independent authority, and more control exercised by the Security Council, where the U.S. has veto power. Other countries may have similar misgivings, but may lack the international influence to take a decisive stand. They may fear the potential embarrassment of having their human rights records put on trial. Leaders who have violated the human rights of their citizens or others may fear prosecution. The U.S. case remains somewhat unique since it has the largest military in the world and tends to be involved in more places more frequently. It also reflects a concern for entangling international obligations that has been an undercurrent of U.S. foreign policy for much of its history. In essence, the U.S. is reluctant to give up the ability to act in its self-interest that its power provides.

Critiques of International Law

Although much of this discussion has portrayed international law as a potential means of conflict management or resolution, it should be remembered that law is itself a source of significant conflict. The shape and content of law often favors particular groups or countries. Not only is international law often most influential when it favors the strongest, but the powerful are also typically the source of law. For example, because much of international law is formed by the U.N., the Security Council has a disproportionate influence in shaping it.

One prominent example of might makes right in international law is in the realm of laws related to trade and investment. Enforcement comes largely through power, which means that the developed world often controls the agenda. They have the market power to punish and entice smaller states to comply. The creation of the World Trade Organization (WTO) in 1995 marked a dramatic advancement in the development of trade law and enforcement mechanisms over what existed under the General Agreement on Tariffs and Trade (GATT). The WTO has been widely criticized for "green room"[8] agenda-setting by the global North, and other actions that put the South at a disadvantage.[9] New laws also create significant administrative burden for poor states, which is perhaps not bad for the long run, but makes for costly compliance.[10]

At base, though, law is only as effective as the means of enforcement and developing countries lack the power to retaliate effectively. Trade law is branching out into new areas as well, which will potentially put the South at an even greater disadvantage. Efforts are in various stages to link trade law to a range of issues from intellectual property regulations (TRIPs) to the environment to labor standards. TRIPs appear to favor Northern multinational corporations, while not protecting indigenous knowledge.[11] It also promises to make the cost of drugs to fight deadly illnesses such as AIDS a severe burden for poor countries. In terms of environmental law, it is often seen by the South as cutting off the path to development that the North took long ago, leaving the South in permanent dependency.

At the same time, the WTO's Dispute Settlement Understanding does take many steps to help developing countries operate on equal footing, compared to the GATT.[12] Each case must have a representative from the South as one of the three hearing the case. Voting is more explicit than under the GATT. Provisions have also been made to provide expertise to delegations from the South, but they are still left unable to shape the agenda. In sum, the WTO Dispute Settlement System does provide better opportunity for developing countries to bring complaints, but they often lack the technical expertise to take advantage of it.

International law has also been criticized as fundamentally Western. Certainly, most international law is based on Western notions. One sign of this might be that the Western Countries are more compliant with the international laws on human rights.[13] Others argue, however, that the widespread acceptance of international law is evidence that the principles on which it is based are not strictly Western. Still, it is not clear that many developing countries are entirely free to accede to these rules, as the WTO example above suggests. Western countries are able to provide incentives for less powerful countries to accede to their wishes. Either way, however, it means that international law has at least some force behind it, though not nearly as much as domestic legal systems.


[1] William A. Schabas, "International Law and Response to Conflict," in Turbulent Peace: The Challenges of Managing International Conflict, eds. Chester A. Crocker, Fen Osler Hampson, and Pamela Aall (Washington, D.C.: United States Institute of Peace Press, 2001), 603-618. <http://www.amazon.com/Turbulent-Peace-Challenges-Managing-International/dp/1929223277>.

[2] Ibid.

[3] Trevor C. Hartley, The Foundations of European Community Law, Third Edition (New York: Oxford University Press, 1994). Access revised edition (2010) here.

[4] Schabas 2001.

[5] Ibid, 607.

[6] Ibid.

[7] Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals Princeton, N.J.: Princeton University Press, 2000). <http://books.google.com/books?id=M3XeD1OvxRYC>.

[8] So called green room deals refer to pre-negotiation meetings of representatives of developed countries in which they agree to a position for negotiations involving the broader international community. Given their power and influence, they are then able to present a unified front in negotiations with developing countries and therefore shape the debate such to favor their interests.

[9] Sarah Anderson, ed., Views from the South: The Effects of Globalization and the WTO on Third World Countries (Chicago: Food First Books, 2000) <http://books.google.com/books?id=fai2AAAAIAAJ>.; Walden Bello, "Reforming the WTO is the Wrong Agenda," in Globalize This!: The Battle Against the World Trade Organization and Corporate Rule, eds. Kevin Danaher and Roger Burback (Monroe, ME: Common Courage Press, 2000) 103-119. <http://books.google.com/books?id=3lRjQgAACAAJ>.

[10] Magda Shahin, From Marrakesh to Singapore: The WTO and Developing Countries. Penang, Malaysia: Third World Network. <http://books.google.com/books?id=CdC2AAAAIAAJ>.

[11]Anderson 2000.

[12] Kofi Oteng Kufuor, "From the GATT to the WTO -- The Developing Countries and the Reform of the Procedures for the Settlement of International Trade Disputes," Journal of World Trade 31, no. 5 (October 1997): 117-147.

[13] Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990). <http://books.google.com/books?id=jxYCBOV1IwwC>.


Use the following to cite this article:
Brahm, Eric. "International Law." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/international-law>.

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