INTERNATIONAL LAW
The body of law that governs the legal relations between or among states or nations.
To qualify as a subject under the traditional
definition of international law, a state had to
be sovereign: It needed a territory, a popula-
tion, a government, and the ability to engage in
diplomatic or foreign relations. States within
the United States, provinces, and cantons were
not considered subjects of international law,
because they lacked the legal authority to
engage in foreign relations. In addition, indi-
viduals did not fall within the definition of
subjects that enjoyed rights and obligations
under international law.
A more contemporary definition expands
the traditional notions of international law to
confer rights and obligations on intergovern-
mental international organizations and even on
individuals. The UNITED NATIONS, for example,
is an international organization that has the
capacity to engage in treaty relations governed
by and binding under international law with
states and other international organizations.
Individual responsibility under international
law is particularly significant in the context of
prosecuting war criminals and the development
of international HUMAN RIGHTS.
Sources of International Law
The INTERNATIONAL COURT OF JUSTICE
(ICJ) was established in 1945 as the successor to
the Permanent International Court of Justice
(PICJ), which was created in 1920 under the
supervision of the LEAGUE OF NATIONS (the pre-
cursor to the United Nations). The PICJ ceased
to function during WORLD WAR II and was offi-
cially dissolved in 1946. The ICJ is a permanent
international court located in the Hague,
Netherlands, and it is the principal judicial
organ of the United Nations (UN). It consists of
15 judges, each from a different state. The judges
are elected by the UN General Assembly and the
UN Security Council and must receive an
absolute majority from both in order to take
office.
The ICJ has jurisdiction only over states that
have consented to it. It follows that the court
cannot hear a dispute between two or more state
parties when one of the parties has not accepted
its jurisdiction. This can happen even where the
non-consenting party adheres to the court’s
statute, for mere adherence to the statute does
not imply consent to its tribunals. In addition,
the court does not have jurisdiction over dis-
putes between individuals or entities that are not
states (I.C.J. Stat. art. 34(1)). It also lacks juris-
diction over matters that are governed by
domestic law instead of international law (art.
38(1)).
Article 38(1) of the ICJ Statute enumerates
the sources of international law and provides
that international law has its basis in interna-
tional custom, international conventions or
treaties, and general principles of law. A rule
must derive from one of these three sources in
order to be considered international law.
Custom Customary international law is
defined as a general PRACTICE OF LAW under
article 38(1)(b). States follow such a practice out
of a sense of legal obligation. Rules or principles
must be accepted by the states as legally binding
in order to be considered rules of international
law. Thus, the mere fact that a custom is widely
followed does not make it a rule of international
law. States also must view it as obligatory to fol-
low the custom, and they must not believe that
they are free to depart from it whenever they
choose, or to observe it only as a matter of cour-
tesy or moral obligation. This requirement is
referred to as opinio juris.
Some criticism against customary interna-
tional law is directed at its subjective character
and its inconsistency. States vary greatly in their
opinions and interpretations of issues regarding
international law. Thus, it is almost impossible
to find enough consistency among states to draw
a customary international rule from general
practice. In addition, even if one state or judge
finds that a practice is a rule of customary inter-
national law, another decision maker might
reach a different conclusion. Altogether, the
process of establishing rules of customary inter-
national law is lengthy and impeded by today’s
fast-changing world.
Conventions and Treaties Conventional international law includes international agreements and legislative treaties that establish rules expressly recognized by consenting states. Only states that are parties to a treaty are bound by it.
However, a very large number of states voluntar-
ily adhere to treaties and accept their provisions
as law, even without becoming parties to them.
The most important treaties in this regard are
the Genocide Convention, the Vienna conven-
tions, and the provisions of the UN Charter.
UN Charter and United Nations
The UN Charter and the United Nations as
an organization were established on October 26,
1945. The UN Charter is a multilateral treaty
that serves as the organization’s constitution.
The UN Charter contains a supremacy clause
that makes it the highest authority of interna-
tional law. The clause states that the UN Charter
shall prevail in the event of a conflict between
the obligations of the members of the United
Nations under the present charter and their
obligations under any other international agree-
ment (art. 103).
At its formation, the United Nations had 51
member states. Its membership had increased to
180 states in 1996, including almost all of the
world’s independent nations. The United Nations
is designed to serve a multitude of purposes and is
charged with a variety of responsibilities. Among
these are peacekeeping; developing friendly rela-
tions among nations; achieving international
cooperation in solving international problems of
an economic, social, cultural, and humanitarian
character; and promoting human rights and fun-
damental freedoms for all human beings without
discrimination (UN Charter art. 1).
The United Nations comprises the Trusteeship Council, the General Assembly, the Security Council, the Economic and Social Council, and the ICJ. The Trusteeship Council’s role is to supervise the administration of non-selfgoverning territories. Because all of these territories have now gained independence, the last one
being Palau in 1993, the Trusteeship Council is
no longer functional within the United Nations.
The General Assembly and the Security Council are the components of the organization
that are most involved in lawmaking and legisla-
tive activities. Their respective authority varies
greatly. Although the General Assembly lacks
formal legislative authority to adopt resolutions
that are binding on its members, it is highly
active in the making and development of inter-
national law. This organ of the United Nations is
required to initiate studies and to make recom-
mendations that encourage the progressive
development of international law and its CODIFI-
CATION (UN Charter art. 13(1)(a)). Within this
context, the General Assembly has originated
much of the existing international legislation,
and some of its resolutions are now accepted as
customary international law, such as the UNIVER-
SAL DECLARATION OF HUMAN RIGHTS. Thus,
resolutions adopted by the General Assembly,
albeit formally considered non-binding, have
legal character and contribute significantly to the
development of international law.
The Security Council, on the other hand, has
the authority to adopt binding decisions, and
non-compliance with these decisions constitutes
a violation of the UN Charter. However, this
does not give the Security Council a general law-
making authority, as its SUBJECT MATTER JURIS-
DICTION is limited to concerns of international
peace and security. According to the UN Char-
ter, article 2(3), all nations are required to settle
their disputes by peaceful means in such a man-
ner that international peace, security, and justice
are not endangered. Nations are advised to
resort to peaceful dispute-settlement mecha-
nisms (art. 33(1)) such as negotiation, media-
tion, and conciliation. Where these measures
fail, the parties must refer to the UN Security
Council if their proposed measure would be a
threat to peace and security. The Security Coun-
cil then makes recommendations on further
peaceful measures, and it resorts to the powers
conferred on it under the UN Charter for its
peacekeeping operations. The General Assem-
bly’s role in peacekeeping focuses mainly on
providing a forum for public discussion of the
issues. However, the assembly does have the
power to bring issues that potentially endanger
the peace before the Security Council.
In some cases, the Security Council fails to
exercise its responsibility for maintaining inter-
national peace and security, and there is a threat
to peace or an act of aggression. The General
Assembly or Security Council may make appro-
priate recommendations and may authorize the
threat of economic sanctions or the use of
armed forces to maintain or restore interna-
tional peace and security.
The UN Peacekeeping Forces are employed
by the World Organization and may function
