ULI103U-INTRODUCTION TO INTERNATIONAL RELATIONS
Chapter 5: International Law
Basic Characteristics of International Law
To understand the basic features of international law, one should first understand the concept of law simply because international law is a branch of law.
The Concept of the Law
To keep the community together, the interests of all members need to be balanced by various means; the usual ones include customs, religion, and morality. Community order is eventually established through these rules. The rules of law are among such rules, all designed to keep the unity of a community by balancing the interests of the members.
Law, like other rules, exists to keep order by providing peace, trust, justice, equality and freedom for mankind. However, law is different from them in terms of its creation and enforcement. Law can be described as those rules created and enforced by the highest political authority of a community to establish order by striking a balance amongst all the competing interests of members of the community.
Origins of International Law
A system of law governing relations between and among states existed as back as in the times of Hittites, roughly 1650 BCE. There were the Draconian and other laws of the Hellenes in the west, the laws of Solon, some Greek laws intended for strictly local use but others governing relations among the Greek city-states. International trade and boundary issues led to the employment of international law throughout Africa, both north and south of the Sahara. Much of modern international law is based on concepts that were established during the Roman Empire.
Nonetheless, the development of Western codified international law is said to have started in Europe in the 16th and 17th centuries CE. Then, it extended to the other parts of the world after the 18th century, especially with the establishment of the League of Nations in the 20th century. The establishment of the United Nations in 1945 made of international law a global legal system.
International law has features familiar to the general concept of law but it offers peculiar characteristics in terms of creation and enforcement. This is basically because the international community has its own different and unique structure, one which is quite different even from those of a national community.
The international community is traditionally composed of states, so they were essentially the only units which could act internationally.
The rules of international law are created by those who must apply or obey these rules. These are basically states and to a limited extent other international actors. The decisions of international organizations such as the United Nations also contribute to the creation of the rules of international law. However, these decisions may still be
regarded only by those states that are the members of this organization.
Relationship Between International Law and Municipal Laws
Because some issues are regulated by both international law and municipal laws, and since the main actor in both legal systems is the state, there is naturally a relationship between the two legal systems. There are, however, two aspects or problems to be dealt with.
• First, when rules of the two systems on the same issue conflict, this must be settled. • Second, as there are common issues and actors, can rules of one legal system, that is, those of international law, be directly applied in the realm of the other system?
There are two different ways to answer these questions.
1. First is the Dualist View. This stipulates that international law and municipal laws are two separate legal systems so that there cannot be a conflict of rules. What about the application of the rules of one to the other? This perspective stipulates that to apply the rules in the other realm, a given rule must be transferred into the realm of the other legal system. 2. On the other hand, the Monist View differs. It stipulates that international law and municipal law are parts of the same legal system, because there is only one legal realm in the world. In the case of a conflict of rules, some argue that international law is superior over the municipal rules, but others differ. Both views are grounded in reason.
Conflict of Laws and the Example of the Turkish Constitution
Article 90 of the Turkish Constitution stipulates that:
“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made about these agreements on the grounds that they are unconstitutional.”
“In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms, and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”
This general provision deals only with international agreements and puts them on equal footing with the legislation formulated by the Turkish Parliament. The only exception is those international agreements which are related to fundamental human rights. These agreements are superior to internal regulations when they conflict with each other. Another important aspect of the provision is that unlike Parliamentary legislation, international agreements cannot be taken to the Constitutional Court arguing that they conflict with the Turkish Constitution.
Thus, an international treaty is applied even if the treaty seems to conflict with the Constitution.
Sources of International Law
Sources of law can be divided into two groups: binding (primary) and subsidiary sources. Binding sources are those that create rules while subsidiary ones help grasp the meaning of rules and interpret them. By definition, subsidiary sources are non-binding. Both primary and subsidiary sources can be in written and unwritten form.
Binding Sources of International
Law International Treaties
Treaties are written agreements between states that are governed by international law. Treaties are referred to by different names, including agreements, conventions, covenants, protocols and exchanges of notes. If states want to enter into a written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of Understanding and provide that it is not governed by international law. Treaties can be bilateral, multilateral, regional and global. The law of treaties is now set out in the 1969 Vienna Convention on the Law of Treaties which contains the basic principles of treaty law, the procedures for how treaties become binding and enter force, the consequences of a breach of treaty, and principles for interpreting treaties.
Custom
Article 38 recognizes international custom as “evidence of a general practice accepted as law.” Today most of the rules of international law are codified in treaties and, therefore, custom has lost its significance. There are two elements of custom:
• The objective element (general practice) • The subjective (psychological element) (opinio juris)
General Principles of Law
According to the Statute of the International Court of Justice, the source for rules of international law can be found in what it terms “General Principles of Law.” Most Western jurists consider that these principles should be based on those underlying the legal systems of civilized states, especially those of Europe and the USA. These jurists also consider the general principles to be a lawcreating source that is independent of either treaties or custom. Given their possible bias towards certain Western capitalist countries, these propositions have proved highly contentious in Third World and socialist countries, which have endeavored to limit the scope of the principles.
Subsidiary (Non-binding) Sources of International Law
Judicial Decisions
Article 38 provides that the ICJ will apply judicial decisions as a subsidiary means. However, the application of judicial decisions is subject to Article 59 of the Statute which states that “the decision of the Court has no binding
force except between the parties and in respect of that particular case.” In other words, international courts are not obliged to follow previous decisions.
Doctrine
The term “the teachings of publicists” means the academic works of the learned writers and scholars of international law who have published monographs, edited books, and journal articles. This is also a subsidiary means, because there might always be different approaches to a special issue of international law among publicists and a consensus may not be reached all the time. The Court is free to follow a specific approach as it deems appropriate.
Other Possible Sources of International Law
Although there is no reference to the resolutions of international organizations in Article 38 of the International Court of Justice Statute, it could be argued that the list of Article 38 is not an exhaustive one and there might be other sources of international law.
First, there are an increasing number of references to the resolutions of international organizations.
Second, although it is not strictly binding law, soft law cannot be completely disregarded in international law. Soft law, in fact, operates between law and politics.
Third, although its exact meaning and content is controversial, equity is also taken into consideration by international courts. Equity is generally used as a synonym for justice.
The Hierarchy of the Sources
Rules of international law may sometimes conflict with one another; therefore the hierarchy of norms among the sources of international law should be determined. jus cogens principles are at the top of a hierarchy of norms which are followed by treaties, customary law, and general principles as primary sources.
International Legal Personality
“Persons” are the subjects of law. They are granted rights and obligations. In ordinary usage, the term ‘person’ means only individual human beings. However, there are “persons” in legal systems other than individuals. In general law, there are two types of “persons”: real (natural) and legal persons. Individuals are persons by birth. Legal personality, however, is granted by law; that is, one or more individuals may come together and act as a single entity for legal purposes.
State and International Legal Personality
The state as a person of international law should possess the following qualifications:
• a permanent population; • a defined territory; • government; and • capacity to enter into relations with the other states.
Debates on the Right to Self-Determination
Self-determination is the principle in international law that peoples have the right to freely choose their international political status and the type of internal administration with no external compulsion or interference.
Although the content of the right is questionable, after World War II nations which were under colonial domination were given the right to self-determination and consequently this served as a vehicle to independence from colonial empires.
Today, since international law provides significant rights to minorities, it could be argued that only nations which are under colonial domination, occupation, or racist regimes and administrations which gravely and systematically breach human rights have the right to self- determination, not minorities.
Types of States and Implications for International Law
In terms of independence, states are divided into two groups: fully independent states and partially independent states. The former has total independence from external interference. Partially independent states cannot carry out all their internal and external affairs on their own. Protected states (protectorates) and some states under trusteeship could be given as examples of this category.
There are also states with full powers and states with limited powers. Both are recognized as independent states, but the powers of some states are limited by international treaties.
Under this category one can mention the unusual status of permanently neutral states and disarmed states.
Considering internal organization of countries, we may divide states into those with a unitary system and those with a united system.
• A unitary system is a system of political organization in which most, or all, of the governing power resides in a centralized government. In a unitary system, the central government commonly delegates authority to subnational units and channels policy decisions down to them for implementation. • However, in states with a united system, the central government and local governments share the governing power. Federations and confederations are the typical examples of states with a united system.
Recognition of States in International Law
The official recognition of other countries is a complex matter. For example, in diplomacy there is de facto recognition and de jure recognition.
Recognition is about the decision of sovereign states to treat one another as sovereign entities. However, there is no rule that when an entity declares its independence,
other states will recognize it. States are free to make their own decisions on whether to recognize the newly declared entity.
Theories on Recognition
There are two theories on this: constitutive and declaratory. According to the constitutive theory, “a state or government does not exist for the purposes of international law until it is recognized; recognition thus has a constitutive effect in the sense that it is a necessary condition for the ‘constitution’ of the state or government concerned.”
However, the constitutive theory is opposed by the declaratory theory, according to which recognition has no legal effects.
Mode of Recognition
Recognition may be either express or implied. Express recognition involves a formal indication or declaration. Implied recognition takes place without directly expressing it. Some actions of a state that indicate its clear intention of recognition may result in implied recognition such as signing a bilateral treaty and initiating diplomatic relations with an entity.
There cannot be implied recognition if a state declares it does not recognize the entity in question as a state, simply because recognition in the first place is based on intention.
International Organization and International Legal Personality
An international organization is an institution established by a treaty between two or more states.
An international organization, whether nongovernmental or governmental, is generally considered a legal personality in international law. However, this is not the same thing as saying it is a state, or that its legal personality and rights and duties are the same as those of a state.
An international organization, whether it is structured as a governmental or non-governmental body is a relatively new entity on the international stage but now is a subject of international law and capable of possessing rights and duties. Its legal personality is relative to specific purposes for which it is set up and limited to those purposes.
Following World War II there has been a tendency to confer direct rights and duties upon real persons (individuals) and organizations in international law. This is especially evident in the fields of human rights and international criminal law. Today, it may be admitted that individuals and organizations may have some degree of international legal personality to the extent that they are conferred direct rights and duties by international law.
State Responsibility
In any legal system, there is liability for failure to observe obligations imposed by its rules. Such liability is called “state responsibility” in international law.
Existence of Responsibility
State responsibility is regulated by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of 2001, though the draft has not become an international treaty so far. The text of the Draft Articles was adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session.
There are two main theories concerning the basis of state responsibility:
• The objective (risk) responsibility theory claims that even without any fault a state is responsible for its breaches if there exists causal connection and attribution. • On the other hand, the subjective (fault) responsibility theory rests on fault.
Constituent Elements of an Internationally Wrongful Act
Article 2 of the Draft specifies two conditions required to establish the existence of an internationally wrongful act of the state, i.e. the constituent elements of such an act.
First, the conduct in question must be attributable to the state under international law. Second, for responsibility to attach to the act of the state, the conduct must constitute a breach of an international legal obligation in force for that state at that time.
Attributability (Imputability)
Clearly, the conduct of any state organ must be considered an act of that state under international law.
A state is liable only for its own acts and omissions; and, in this context, the state is identified with its governmental apparatus, not with the population as a whole. The governmental apparatus of the state includes the legislature and the judiciary, as well as the executive; and it includes local authorities as well as central authorities.
Breach of an Obligation
According to the Draft Articles, Number 2, the second condition for the existence of an internationally wrongful act of the State is “that the conduct attributable to the state should constitute a breach of an international obligation of that state.”
Thus, a breach of an international obligation occurs when an act of the state is not in conformity with what is required by that obligation, regardless of its origin or character. State responsibility may arise from breaches of bilateral and multilateral obligations or of obligations owed to the international community. International law does not differentiate between contractual and tortuous responsibility, nor does any differentiation exist between civil and criminal responsibility.
Circumstances Precluding Wrongfulness
Chapter V of the Draft Articles on the Responsibility of States sets out six circumstance precluding the wrongfulness of conduct that would otherwise not be in conformity with the international obligations of the state concerned. The six circumstances are:
1. Consent, 2. Self-defense, 3. Countermeasures, 4. Force Majeure, 5. Distress and 6. Necessity
Implementation of State Responsibility: Restitution, Compensation, Satisfaction
The responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a state. Full reparation for the injury caused by the internationally wrongful act takes the form of restitution, compensation and satisfaction, either singly or in combination.
First, a state responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution is not materially impossible; and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
Second, the state responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation should cover any financially assessable damage including loss of profits insofar as it is established.
Third, the state responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
Diplomatic Protection and Nationality
If a national of a state is injured by an act of another state, this may also mean the state of nationality is injured by that state indirectly.
“Failure to comply with the minimum international standard ‘engages the international responsibility’ of the defendant state, and the national state of the injured alien may ‘exercise its right of diplomatic protection’, that is, may make a claim, through diplomatic channels, against the other state, in order to obtain compensation or some other form of redress
Dispute Settlement
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Parties to a dispute are free to choose one or a combination of these methods if otherwise is not provided by an agreement. Basically, these methods of dispute settlement fall into two categories:
• Diplomatic methods, through which nonbinding decisions are made, and • Binding legal methods.
Diplomatic Methods
Negotiation
Negotiation is the simplest and most utilized method of dispute settlement. Negotiation is basically discussions between parties on how to resolve their differences. Parties choose their method of negotiation. Direct-indirect, open-secret, written-verbal, bilateral-multilateral methods can be employed.
Good Offices and Mediation
When a third party encourages parties to enter negotiations, this method of dispute settlement is called Good Offices.
Mediation implies relatively more active participation of a third party in the negotiation process. In this case, a third party is present at negotiations.
Conciliation
This involves a third-party investigation and the submission of a report embodying suggestions for a solution. Conciliation is often carried out by a commission which is composed of an equal number of members from each party to the dispute as well as neutral members and a neutral head of commission.
Fact-Finding and Inquiry
Especially in cases where technical expertise is required, the finding of facts and inquiry of the case by an independent third party is extremely important.
Typically, fact-finding and inquiry are conducted by commissions created for this purpose with the consent of the parties to the dispute. The commission prepares a report after its research. Although the findings and suggestions of the report are non-binding, they may carry political weight. The report may point out the party which breached the law. In the end, it is the task of a conciliation commission to submit a report on a proposed settlement of a dispute, not an inquiry or fact-finding commission.
Legal Methods
Adjudication: The International Court of Justice The International Court of Justice is the leading court in the international legal system. This court is often referred to as the World Court. It is the principal judicial organ of the United Nations and succeeded the Permanent Court of International Justice.
Contentious Cases
In the exercise of its jurisdiction in contentious cases, the International Court of Justice must decide, in accordance with international law, disputes of a legal nature that are submitted to it by states. An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict, a clash of legal views or of interests. Judgements delivered by the Court in contentious cases are final and binding.
States may recognize the jurisdiction of the International Court of Justice in one of four ways:
• Compromis (Special Agreement) • Forum Prorogatum • International treaty • Unilateral declaration.
Advisory Opinion
Article 96 of the United Nations Charter provides for advisory opinions, as follows:
a. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. b. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
Arbitration
Arbitration as one of the legal means of dispute settlement is binding. Arbitrators are elected by the parties. In this respect, it differs from the court mechanism. As in adjudication, the consent of all parties is required for arbitration.