international law, also called public international law or law of nations, the body of legal

rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as

international actors. The term was coined by the English philosopher Jeremy Bentham (17481832).

The nature and development of international law

Definition and scope
According to Benthams classic definition, international law is a collection of rules
governing relations between states. It is a mark of how far international law has
evolved that this original definition omits individuals and international organizationstwo of
the most dynamic and vital elements of modern international law. Furthermore, it is
no longer accurate to view international law as simply a collection of rules; rather, it
is a rapidly developing complex of rules and influentialthough not directly binding
principles, practices, and assertions coupled with increasingly sophisticated
structures and processes. In its broadest sense, international law provides normative
guidelines as well as methods, mechanisms, and a common conceptual language to
international actorsi.e., primarily sovereign states but also increasingly
international organizations and some individuals. The range of subjects and actors
directly concerned with international law has widened considerably, moving beyond
the classical questions of war, peace, and diplomacy to include human rights, economic
and trade issues, space law, and international organizations. Although international law
is a legal order and not an ethical one, it has been influenced significantly by ethical
principles and concerns, particularly in the sphere of human rights.
International law is distinct from international comity, which comprises legally
nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of
the flags of foreign warships at sea). In addition, the study of international law, or
public international law, is distinguished from the field of conflict of laws, or private
international law, which is concerned with the rules of municipal lawas international
lawyers term the domestic law of statesof different countries where foreign
elements are involved.
International law is an independent system of law existing outside the legal orders of
particular states. It differs from domestic legal systems in a number of respects. For
example, although the United Nations (UN) General Assembly, which consists of
representatives of some 190 countries, has the outward appearances of a
legislature, it has no power to issue binding laws. Rather, its resolutions serve only
as recommendationsexcept in specific cases and for certain purposes within the
UN system, such as determining the UN budget, admitting new members of the UN,
and, with the involvement of the Security Council, electing new judges to the International
Court of Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction
in international law. The ICJs jurisdiction in contentious cases is founded upon
the consent of the particular states involved. There is no international police force or
comprehensive system of law enforcement, and there also is no supreme executive
authority. The UN Security Council may authorize the use of force to compel states
to comply with its decisions, but only in specific and limited circumstances;
essentially, there must be a prior act of aggression or the threat of such an act.
Moreover, any such enforcement action can be vetoed by any of the councils five
permanent members (China, France, Russia, the United Kingdom, and the United
States). Because there is no standing UN military, the forces involved must be
assembled from member states on an ad hoc basis.
International law is a distinctive part of the general structure of international relations. In
contemplating responses to a particular international situation, states usually
consider relevant international laws. Although considerable attention is invariably
focused on violations of international law, states generally are careful to ensure that
their actions conform to the rules and principles of international law, because acting
otherwise would be regarded negatively by the international community. The rules of
international law are rarely enforced by military means or even by the use of
economic sanctions. Instead, the system is sustained byreciprocity or a sense of
enlightened self-interest. States that breach international rules suffer a decline in
credibility that may prejudice them in future relations with other states. Thus, a
violation of a treaty by one state to its advantage may induce other states to breach
other treaties and thereby cause harm to the original violator. Furthermore, it is
generally realized that consistent rule violations would jeopardize the value that the
system brings to the community of states, international organizations, and other
actors. This value consists in the certainty, predictability, and sense of common
purpose in international affairs that derives from the existence of a set of rules
accepted by all international actors. International law also provides a framework and
a set of procedures for international interaction, as well as a common set of concepts
for understanding it.
Historical development
International law reflects the establishment and subsequent modification of a world
system founded almost exclusively on the notion that independent sovereign states
are the only relevant actors in the international system. The essential structure of
international law was mapped out during the European Renaissance, though its origins
lay deep in history and can be traced to cooperative agreements between peoples in
the ancient Middle East. Among the earliest of these agreements were a treaty between
the rulers of Lagash and Umma (in the area of Mesopotamia) in approximately
2100 BCE and an agreement between the Egyptian pharaoh Ramses II and Hattusilis III,
the king of the Hittites, concluded in 1258 BCE. A number of pacts were subsequently
negotiated by various Middle Eastern empires. The long and rich cultural traditions of
ancient Israel, the Indian subcontinent, and China were also vital in the development
of international law. In addition, basic notions of governance, of political relations,
and of the interaction of independent units provided by ancient Greek political
philosophy and the relations between the Greek city-states constituted important
sources for the evolution of the international legal system.
Many of the concepts that today underpin the international legal order were
established during the Roman Empire. The jus gentium (Latin: law of nations), for
example, was invented by the Romans to govern the status of foreigners and the
relations between foreigners and Roman citizens. In accord with the Greek concept
of natural law, which they adopted, the Romans conceived of the jus gentium as having
universal application. In the Middle Ages, the concept of natural law, infused with religious
principles through the writings of the Jewish philosopher Moses Maimonides (11351204)
and the theologian St. Thomas Aquinas(1224/251274), became the intellectual
foundation of the new discipline of the law of nations, regarded as that part of natural
law that applied to the relations between sovereign states.
After the collapse of the western Roman Empire in the 5th century CE, Europe suffered
from frequent warring for nearly 500 years. Eventually, a group of nation-

states emerged, and a number of supranational sets of rules were developed to

govern interstate relations, including canon law, the law merchant (which governed trade),
and various codes of maritime lawe.g., the 12th-century Rolls of Olron, named for an
island off the west coast of France, and the Laws of Wisby (Visby), the seat of
the Hanseatic League until 1361. In the 15th century the arrival of Greek scholars in
Europe from the collapsing Byzantine Empire and the introduction of the printing
press spurred the development of scientific, humanistic, and individualist thought,
while the expansion of ocean navigation by European explorers spread European
norms throughout the world and broadened the intellectual and geographic horizons
of western Europe. The subsequent consolidation of European states with increasing
wealth and ambitions, coupled with the growth in trade, necessitated the
establishment of a set of rules to regulate their relations. In the 16th century the
concept of sovereignty provided a basis for the entrenchment of power in the person of
the king and was later transformed into a principle of collective sovereignty as
the divine right of kings gave way constitutionally to parliamentary or representative
forms of government. Sovereignty also acquired an external meaning, referring to
independence within a system of competing nation-states.

Early writers who dealt with questions of governance and relations

between nations included the Italian lawyers Bartolo da Sassoferrato (1313/141357),
regarded as the founder of the modern study of private international law, and Baldo
degli Ubaldi (13271400), a famed teacher, papal adviser, and authority on Roman
and feudal law. The essence of the new approach, however, can be more directly
traced to the philosophers of the Spanish Golden Age of the 16th and 17th centuries.
Both Francisco de Vitoria (14861546), who was particularly concerned with the
treatment of the indigenous peoples of South America by the conquering Spanish
forces, and Francisco Surez (15481617) emphasized that international law was
founded upon the law of nature. In 1598 Italian juristAlberico Gentili (15521608),
considered the originator of the secular school of thought in international law,
published De jure belli libri tres (1598; Three Books on the Law of War), which contained a
comprehensive discussion of the laws of war and treaties. Gentilis work initiated a
transformation of the law of nature from a theological concept to a concept of secular
philosophy founded on reason. The Dutch jurist Hugo Grotius (15831645) has
influenced the development of the field to an extent unequaled by any other theorist,
though his reputation as the father of international law has perhaps been
exaggerated. Grotius excised theology from international law and organized it into a
comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law of War and
Peace). Grotius emphasized the freedom of thehigh seas, a notion that rapidly gained
acceptance among the northern European powers that were embarking upon
extensive missions of exploration and colonization around the world.
The scholars who followed Grotius can be grouped into two schools, the naturalists
and the positivists. The former camp included the German jurist Samuel von
Pufendorf (163294), who stressed the supremacy of the law of nature. In
contrast, positivist writers, such asRichard Zouche (15901661) in England and Cornelis van
Bynkershoek (16731743) in the Netherlands, emphasized the actual practice of
contemporary states over concepts derived from biblical sources, Greek thought,
or Roman law. These new writings also focused greater attention on the law of peace
and the conduct of interstate relations than on the law of war, as the focus of
international law shifted away from the conditions necessary to justify the resort to
force in order to deal with increasingly sophisticated interstate relations in areas such
as the law of the sea and commercial treaties. The positivist school made use of the
new scientific method and was in that respect consistent with the empiricist and
inductive approach to philosophy that was then gaining acceptance in Europe.
Elements of both positivism and natural law appear in the works of the German
philosopher Christian Wolff (16791754) and the Swiss jurist Emerich de Vattel (171467),
both of whom attempted to develop an approach that avoided the extremes of each
school. During the 18th century, the naturalist school was gradually eclipsed by the
positivist tradition, though, at the same time, the concept of natural rightswhich
played a prominent role in the American and French revolutionswas becoming a
vital element in international politics. In international law, however, the concept of
natural rights had only marginal significance until the 20th century.
Positivisms influence peaked during the expansionist and industrial 19th century,
when the notion of state sovereignty was buttressed by the ideas of exclusive
domestic jurisdiction and nonintervention in the affairs of other statesideas that
had been spread throughout the world by the European imperial powers. In the 20th
century, however, positivisms dominance in international law was undermined by
the impact of two world wars, the resulting growth of international organizations
e.g., the League of Nations, founded in 1919, and the UN, founded in 1945and the
increasing importance of human rights. Having become geographically international
through the colonial expansion of the European powers, international law became
truly international in the first decades after World War II, when decolonization resulted in
the establishment of scores of newly independent states. The varying political and
economic interests and needs of these states, along with their diverse cultural
backgrounds, infused the hitherto European-dominated principles and practices of
international law with new influences.
The development of international lawboth its rules and its institutionsis inevitably
shaped by international political events. From the end of World War II until the 1990s,
most events that threatened international peace and security were connected to
the Cold War between the Soviet Union and its allies and the U.S.-led Western alliance. The
UN Security Council was unable to function as intended, because resolutions
proposed by one side were likely to be vetoed by the other. The bipolar system of
alliances prompted the development of regional organizationse.g., the Warsaw
Pact organized by the Soviet Union and the North Atlantic Treaty Organization (NATO)
established by the United Statesand encouraged the proliferation of conflicts on
the peripheries of the two blocs, including in Korea, Vietnam, and Berlin.
Furthermore, the development of norms for protecting human rights proceeded
unevenly, slowed by sharp ideological divisions.
The Cold War also gave rise to the coalescence of a group of nonaligned and often
newly decolonized states, the so-called Third World, whose support was eagerly
sought by both the United States and the Soviet Union. The developing worlds
increased prominence focused attention upon the interests of those states,
particularly as they related to decolonization, racial discrimination, and economic aid. It
also fostered greater universalism in international politics and international law.
The ICJs statute, for example, declared that the organization of the court must reflect
the main forms of civilization and the principal legal systems of the world. Similarly,
an informal agreement among members of the UN requires that nonpermanent seats
on the Security Council be apportioned to ensure equitable regional representation;
5 of the 10 seats have regularly gone to Africa or Asia, two to Latin America, and the
remainder to Europe or other states. Other UN organs are structured in a similar
fashion.
The collapse of the Soviet Union and the end of the Cold War in the early 1990s
increased political cooperation between the United States and Russia and their allies
across the Northern Hemisphere, but tensions also increased between states of the
north and those of the south, especially on issues such as trade, human rights, and
the law of the sea. Technology and globalizationthe rapidly escalating growth in the
international movement in goods, services, currency, information, and personsalso
became significant forces, spurring international cooperation and somewhat
reducingthe ideological barriers that divided the world, though globalization also led
to increasing trade tensions between allies such as the United States and the European
Union (EU).
Since the 1980s, globalization has increased the number and sphere of influence of
international and regional organizations and required the expansion of international
law to cover the rights and obligations of these actors. Because of its complexity and
the sheer number of actors it affects, new international law is now frequently created
through processes that require near-universal consensus. In the area of
the environment, for example, bilateral negotiations have been supplementedand in
some cases replacedby multilateral ones, transmuting the process of individual
state consent into community acceptance. Various environmental agreements and
the Law of the Sea treaty (1982) have been negotiated through this consensus-building
process. International law as a system is complex. Although in principle it is
horizontal, in the sense of being founded upon the concept of the equality of
statesone of the basic principles of international lawin reality some states
continue to be more important than others in creating and maintaining international
law.
International law and municipal law
In principle, international law operates only at the international level and not within
domestic legal systemsa perspective consistent with positivism, which recognizes
international law and municipal law as distinct and independent systems.
Conversely, advocates of natural law maintain that municipal and international law
form a single legal system, an approach sometimes referred to as monism. Such a
system, according to monists, may arise either out of a unified ethical approach
emphasizing universal human rights or out of a formalistic, hierarchical approach
positing the existence of one fundamental norm underpinning both international law
and municipal law.
A principle recognized both in international case law (e.g., the Alabama claims case
between the United States and the United Kingdom following the American Civil War) and
in treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law of Treaties) is
that no municipal rule may be relied upon as a justification for violating international
law. The position of international law within municipal law is more complex and
depends upon a countrys domestic legislation. In particular, treaties must be
distinguished from customary international law. Treaties are written agreements that
are signed and ratified by the parties and binding on them. Customary international
law consists of those rules that have arisen as a consequence of practices engaged
in by states.
The Constitution of the United States stipulates (Article VI, Section 2) that treaties shall be
the supreme Law of the Land. Treaties are negotiated by the president but can be
ratified only with the approval of two-thirds of the Senate (Article II)except in the
case of executive agreements, which are made by the president on his own authority.
Further, a treaty may be either self-executing or non-self-executing, depending upon
whether domestic legislation must be enacted in order for the treaty to enter into
force. In the United States, self-executing treaties apply directly as part of the
supreme law of the land without the need for further action. Whether a treaty is
deemed to be self-executing depends upon the intention of the signatories and the
interpretation of the courts. In Sei Fujii v.State of California (1952), for example, the
California Supreme Court held that the UN Charter was not self-executing because
its relevant principles concerning human rights lacked the mandatory quality and
certainty required to create justiciable rights for private persons upon its ratification;
since then the ruling has been consistently applied by other courts in the United
States. In contrast, customary international law was interpreted as part of federal law
in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled that
international law forbade the U.S. Navy from selling, as prizes of war, Cuban fishing
vessels it had seized. Domestic legislation is supreme in the United States even if it
breaches international law, though the government may be held liable for such a
breach at the international level. In order to mitigate such a possibility, there is a
presumption that the U.S. Congress will not legislate contrary to the countrys
international obligations.
The United Kingdom takes an incorporationist view, holding that customary international
law forms part of the common law. British law, however, views treaties as purely
executive, rather than legislative, acts. Thus, a treaty becomes part of domestic law
only if relevant legislation is adopted. The same principle applies in other countries
where the English common law has been accepted (e.g., the majority
of Commonwealth states and Israel). Although the incorporationist view regards customary

law as part of the law of the land and presumes that municipal laws should not be
inconsistent with international law, municipal laws take precedence over international
law in cases of conflict. Those common-law countries that have adopted a written
constitution generally have taken slightly different positions on the incorporation of
international law into municipal law. Irelands constitution, for example, states that
the country will not be bound by any treaty involving public funds without the consent
of the national legislature, and in Cyprus treaties concluded in accordance with its
constitution have a status superior to municipal law on the condition of reciprocity.
In most civil-law countries, the adoption of a treaty is a legislative act. The relationship
between municipal and international law varies, and the status of an international
treaty within domestic law is determined by the countrys constitutional provisions. In
federal systems, the application of international law is complex, and the rules of
international law are generally deemed to be part of the federal law. Although a
treaty generally becomes operative only when it has been ratified by a national
legislature, EU countries have agreed that regulations and decisions emanating from
EU institutions are directly applicable and enforceable without the need for enabling
legislationexcept for legislation permitting this form of lawmaking, which is adopted
upon the countrys entry into the union (e.g., Britains adoption of the European
Communities Act in 1972).
Sources of international law
Article 38 (1) of the ICJs statute identifies three sources of international law: treaties,
custom, and general principles. Because the system of international law is horizontal
and decentralized, the creation of international laws is inevitably more complicated
than the creation of laws in domestic systems.
Treaties

Treaties are known by a variety of termsconventions, agreements, pacts, general

acts, charters, and covenantsall of which signify written instruments in which the
participants (usually but not always states) agree to be bound by the negotiated
terms. Some agreements are governed by municipal law (e.g., commercial accords
between states and international enterprises), in which case international law is
inapplicable. Informal, nonbinding political statements or declarations are excluded
from the category of treaties.
Treaties may be bilateral or multilateral. Treaties with a number of parties are more likely
to have international significance, though many of the most important treaties (e.g.,
those emanating from Strategic Arms Limitation Talks) have been bilateral. A number of
contemporary treaties, such as the Geneva Conventions (1949) and the Law of the Sea treaty
(1982; formally the United Nations Convention on the Law of the Sea), have more than 150
parties to them, reflecting both their importance and the evolution of the treaty as a
method of general legislation in international law. Other significant treaties include
the Convention on the Prevention and Punishment of the Crime of Genocide (1948),
the Vienna Convention on Diplomatic Relations (1961), the Antarctic Treaty (1959), and
the Rome Statute establishing the International Criminal Court (1998). Whereas some
treaties create international organizations and provide their constitutions (e.g., the
UN Charter of 1945), others deal with more mundane issues (e.g., visa regulations,
travel arrangements, and bilateral economic assistance).
Countries that do not sign and ratify a treaty are not bound by its provisions.
Nevertheless, treaty provisions may form the basis of an international custom in
certain circumstances, provided that the provision in question is capable of such
generalization or is of a fundamentally norm-creating character, as the ICJ termed
the process in the North Sea Continental Shelf cases (1969). A treaty is based on the
consent of the parties to it, is binding, and must be executed ingood faith. The concept
known by the Latin formula pacta sunt servanda (agreements must be kept) is arguably
the oldest principle of international law. Without such a rule, no international

agreement would be binding or enforceable. Pacta sunt servanda is directly referred to in

many international agreements governing treaties, including the Vienna Convention on the

Law of Treaties (1969), which concerns treaties between states, and the Vienna
Convention on the Law of Treaties Between States and International Organizations
or Between International Organizations (1986).
There is no prescribed form or procedure for making or concluding treaties. They
may be drafted between heads of state or between government departments. The
most crucial element in the conclusion of a treaty is the signaling of the states
consent, which may be done by signature, an exchange of instruments, ratification,
or accession. Ratification is the usual method of declaring consentunless the
agreement is a low-level one, in which case a signature is usually sufficient.
Ratification procedures vary, depending on the countrys constitutional structure.
Treaties may allow signatories to opt out of a particular provision, a tactic that
enables countries that accept the basic principles of a treaty to become a party to it
even though they may have concerns about peripheral issues. These concerns are
referred to as reservations, which are distinguished from interpretative declarations,
which have no binding effect. States may make reservations to a treaty where the
treaty does not prevent doing so and provided that the reservation is not
incompatible with the treatys object and purpose. Other states may accept or object
to such reservations. In the former case, the treaty as modified by the terms of the
reservations comes into force between the states concerned. In the latter case, the
treaty comes into force between the states concerned except for the provisions to
which the reservations relate and to the extent of the reservations. An obvious defect
of this system is that each government determines whether the reservations are
permissible, and there can be disagreement regarding the legal consequences if a
reservation is deemed impermissible.
A set of rules to interpret treaties has evolved. A treaty is expected to be interpreted
in good faith and in accordance with the ordinary meanings of its terms, given the
context, object, and purpose of the treaty. Supplementary means of interpretation,
including the use of travaux prparatoires (French: preparatory works) and
consideration of the circumstances surrounding the conclusion of the treaty, may be
used when the treatys text is ambiguous. In certain cases, a more flexible method of
treaty interpretation, based on the principle of effectiveness (i.e., an interpretation
that would not allow the provision in question to be rendered useless) coupled with
a broader-purposes approach (i.e., taking into account the basic purposes of the
treaty in interpreting a particular provision), has been adopted. Where the treaty is
also the constitutional document of an international organization, a more programmatic
or purpose-oriented approach is used in order to assist the organization in coping
with change. A purpose-oriented approach also has been deemed appropriate for
what have been described as living instruments, such as human rights treaties that
establish an implementation system; in the case of the European Convention on Human
Rights of 1950, this approach has allowed the criminalization of homosexuality to be
regarded as a violation of human rights in the contemporary period despite the fact
that it was the norm when the treaty itself was signed.
A treaty may be terminated or suspended in accordance with one of its provisions (if
any exist) or by the consent of the parties. If neither is the case, other provisions may
become relevant. If a material breach of a bilateral treaty occurs, the innocent party
may invoke that breach as a ground for terminating the treaty or suspending its
operation. The termination of multilateral treaties is more complex. By unanimous
agreement, all the parties may terminate or suspend the treaty in whole or in part,
and a party specially affected by a breach may suspend the agreement between
itself and the defaulting state. Any other party may suspend either the entire
agreement or part of it in cases where the treaty is such that a material breach will
radically change the position of every party with regard to its obligations under the
treaty. The ICJ, for example, issued an advisory opinion in 1971 that regarded as
legitimate the General Assemblys termination of the mandate for South West Africa. A
breach of a treaty is generally regarded as material if there is an impermissible
repudiation of the treaty or if there is a violation of a provision essential to the treatys
object or purpose.
The concept of rebus sic stantibus (Latin: things standing thus) stipulates that, where
there has been a fundamental change of circumstances, a party may withdraw from
or terminate the treaty in question. An obvious example would be one in which a
relevant island has become submerged. A fundamental change of circumstances,
however, is not sufficient for termination or withdrawal unless the existence of the
original circumstances was an essential basis of the consent of the parties to be
bound by the treaty and the change radically transforms the extent of obligations still
to be performed. This exception does not apply if the treaty establishes a boundary
or if the fundamental change is the result of a breach by the party invoking it of
an obligation under the treaty or of any other international obligation owed to any other
party to the treaty.
Custom

The ICJs statute refers to international custom, as evidence of a general

practice accepted as law, as a second source of international law. Custom, whose

importance reflects the decentralized nature of the international system, involves two
fundamental elements: the actual practice of states and the acceptance by states of
that practice as law. The actual practice of states (termed the material fact) covers
various elements, including the duration, consistency, repetition, and generality of a
particular kind of behaviour by states. All such elements are relevant in determining
whether a practice may form the basis of a binding international custom. The ICJ has
required that practices amount to a constant and uniform usage or be extensive
and virtually uniform to be considered binding. Although all states may contribute to
the development of a new or modified custom, they are not all equal in theprocess.
The major states generally possess a greater significance in the establishment of
customs. For example, during the 1960s the United States and the Soviet Union
played a far more crucial role in the development of customs relating to space law than
did the states that had little or no practice in this area. After a practice has been
established, a second element converts a mere usage into a binding customthe
practice must be accepted as opinio juris sive necessitatis(Latin: opinion that an act is
necessary by rule of law). In the North Sea Continental Shelf cases, the ICJ stated that
the practice in question must have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.
Once a practice becomes a custom, all states in the international community are
bound by it whether or not individual states have expressly consentedexcept in
cases where a state has objected from the start of the custom, a stringent test to
demonstrate. A particular practice may be restricted to a specified group of states
(e.g., the Latin American states) or even to two states, in which cases the standard
for acceptance as a custom is generally high. Customs can develop from a
generalizable treaty provision, and a binding customary rule and a multilateral treaty
provision on the same subject matter (e.g., the right to self-defense) may exist at the
same time.
General principles of law
A third source of international law identified by the ICJs statute is the general
principles of law recognized by civilized nations. These principles essentially provide
a mechanism to address international issues not already subject either to treaty
provisions or to binding customary rules. Such general principles may arise either
through municipal law or through international law, and many are in fact procedural
or evidential principles or those that deal with the machinery of the judicial process
e.g., the principle, established in Chorzow Factory (192728), that the breach of an
engagement involves an obligation to make reparation. Accordingly, in the Chorzow
Factory case, Poland was obliged to pay compensation to Germany for the illegal
expropriation of a factory.
Perhaps the most important principle of international law is that of good faith. It governs
the creation and performance of legal obligations and is the foundation of treaty law.
Another important general principle is that of equity, which permits international law
to have a degree of flexibility in its application and enforcement. The Law of the
Sea treaty, for example, called for the delimitation on the basis of equity of exclusive
economic zones and continental shelves between states with opposing or adjacent
coasts.
Other sources
Article 38 (1) of the ICJs statute also recognizes judicial decisions and scholarly
writings as subsidiary means for the determination of the law. Both municipal and
international judicial decisions can serve to establish new principles and rules. In
municipal cases, international legal rules can become clear through their consistent
application by the courts of a number of states. A clearer method of law
determination, however, is constituted by the international judicial decisions of
bodies such as the ICJ at The Hague, the UN International Tribunal for the Law of the
Sea at Hamburg (Germany), and international arbitral tribunals.
International law can arise indirectly through other mechanisms. UN General
Assembly resolutions, for example, are not bindingexcept with respect to certain
organizational proceduresbut they can be extremely influential. Resolutions may
assist in the creation of new customary rules, both in terms of state practice and in
the process of establishing a custom by demonstrating the acceptance by states of
the practice as law (the opinio juris). For this to occur, a resolution must contain
generalizable provisions and attract substantial support from countries with diverse
ideological, cultural, and political perspectives. Examples of such resolutions include
the Declaration on the Granting of Independence to Colonial Countries and Peoples
(1960), the Declaration on the Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space (1963), and the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among States
(1970).
Unilateral actions by a state may give rise to legal obligations when it is clear that the
state intends to be bound by the obligation and when its intention is publicly
announced. An example of such a case was Frances decision to stop
atmospheric nuclear testing during litigation at the ICJ between it and Australia and New
Zealand (1974) concerning the legality of such testing. Unilateral statements also may
constitute evidence of a states views on a particular issue. Even when an instrument
or document does not entail a legal obligation, it may be influential within the
international community. The Helsinki Accords (1975), which attempted to reduce
tensions between the Soviet Union and the United States during the Cold War, was
expressly not binding but had immense political effects. In certain areas, such
as environmental law and economic law, a range of recommendations, guidelines, codes
of practice, and standards may produce what is termed soft lawthat is, an
instrument that has no strict legal value but constitutes an important statement.
Hierarchies of sources and norms
General principles are complementary to treaty law and custom. Sources that are of
more recent origin are generally accepted as more authoritative, and specific rules
take precedence over general rules. Jus cogens (Latin: compelling law) rules are
peremptory norms that cannot be deviated from by states; they possess a higher
status than jus dispositivum (Latin: law subject to the dispensation of the parties), or
normal international rules, and can be altered only by subsequent norms of the same
status. Rules in the former category include the prohibitions against genocide, slavery,
and piracy and the outlawing of aggression. Other examples of jus cogens rules are more
controversial. The Vienna Convention on the Law of Treaties provides (Article 53) that a treaty
will be void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. Further, the wrongfulness of a state action is precluded if
the act is required by a peremptory norm of general international law. For a jus
cogens norm to be created, the principle must first be established as a rule of
international law and then recognized by the international community as a
peremptory rule of law from which no derogation is permitted.
International law also has established a category of erga omnes (Latin: toward all)
obligations, which apply to all states. Whereas in ordinary obligations the defaulting
state bears responsibility toward particular interested states (e.g., other parties to the
treaty that has been breached), in the breach of erga omnesobligations, all states
have an interest and may take appropriate actions in response.
States in international law
Although states are not the only entities with international legal standing and are not
the exclusive international actors, they are the primary subjects of international law
and possess the greatest range of rights and obligations. Unlike states, which
possess rights and obligations automatically, international organizations, individuals,
and others derive their rights and duties in international law directly from particular
instruments. Individuals may, for example, assert their rights under international law
under the International Covenant on Economic, Social, and Cultural Rights and the International
Covenant on Civil and Political Rights, both of which entered into force in 1976.
Statehood
CREATION OF STATES
The process of creating new states is a mixture of fact and law, involving the
establishment of particular factual conditions and compliance with relevant rules. The
accepted criteria of statehood were laid down in theMontevideo Convention (1933), which
provided that a state must possess a permanent population, a defined territory, a
government, and the capacity to conduct international relations.
The need for a permanent population and a defined territory is clear, though
boundary disputese.g., those concerning Albania after World War I and Israel in
1948do not preclude statehood. The international community (including the UN)
has recognized some states while they were embroiled in a civil war (e.g., the Congo
in 1960 and Angola in 1975), thus eroding the effective-government
criterion. Croatia and Bosnia and Herzegovina were also recognized as new states by much
of the international community in 1992, though at the time neither was able to
exercise any effective control over significant parts of its territory. Although
independence is required, it need not be more than formal constitutional
independence.
States may become extinct through merger (North and South Yemen in 1990),
absorption (the accession of the Lnder [states] of the German Democratic Republic into
the Federal Republic of Germany in 1990), dissolution and reestablishment as new and
separate states (the creation of separate Czech and Slovak republics from
Czechoslovakia in 1993), limited dismemberment with a territorially smaller state
continuing the identity of the larger state coupled with the emergence of new states
from part of the territory of the latter (the Soviet Union in 1991), or,
historically, annexation (Nazi Germanys Anschluss of Austria in 1938).
RECOGNITION
Recognition is a process whereby certain facts are accepted and endowed with a
certain legal status, such as statehood, sovereignty over newly acquired territory, or
the international effects of the grant of nationality. The process of recognizing as a
state a new entity that conforms with the criteria of statehood is a political one, each
country deciding for itself whether to extend such acknowledgment. Normal
sovereign and diplomatic immunities are generally extended only after a states executive
authority has formally recognized another state (see diplomatic immunity). International
recognition is important evidence that the factual criteria of statehood actually have
been fulfilled. A large number of recognitions may buttress a claim to statehood even
in circumstances where the conditions for statehood have been fulfilled imperfectly
(e.g., Bosnia and Herzegovina in 1992). According to the declaratory theory of
recognition, which is supported by international practice, the act of recognition
signifies no more than the acceptance of an already-existing factual situationi.e.,
conformity with the criteria of statehood. The constitutive theory, in contrast,
contends that the act of recognition itself actually creates the state.
Before granting recognition, states may require the fulfillment of additional
conditions. The European Community (ultimately succeeded by the EU), for example,
issued declarations in 1991 on the new states that were then forming in eastern
Europe, the former Soviet Union, and Yugoslavia that required, inter alia, respect for
minority rights, the inviolability of frontiers, and commitments to disarmament and
nuclear nonproliferation. The timing of any recognition is crucialparticularly when a
new state has been formed partly from an existing one. Premature recognition in a
case of secession can amount to intervention in a states internal affairs, a violation
of one of the fundamental principles of international law. Recognition of governments is
distinguished from the recognition of a state. The contemporary trend is in fact no
longer to recognize governments formally but to focus instead upon the continuation
(or discontinuation) of diplomatic relations. By this change, states seek to avoid the
political difficulties involved in deciding whether or not to recognize new regimes
taking power by nonconstitutional means.

Although states are not obliged to recognize new claimants to

statehood, circumstances sometimes arise that make it a positive duty not to
recognize a state. During the 1930s, U.S. Secretary of State Henry Stimson propounded
the doctrine of the nonrecognition of situations created as a result of aggression, an
approach that has been reinforced since the end of World War II. In the 1960s, the
UN Security Council called upon all states not to recognize the Rhodesian white-
minority regimes declaration of independence and imposed economic sanctions.
Similar international action was taken in the 1970s and 80s in response to South
Africas creation of Bantustans, or homelands, which were territories that the white-
minority government designated as independent states as part of its policy
ofapartheid. The Security Council also pronounced the purported independence of
Turkish-occupied northern Cyprus as legally invalid (1983) and declared null and
void Iraqs annexation of Kuwait (1990). The UN also has declared that Israels
purported annexation of the Golan Heights (conquered from Syria in 1967) is invalid and
has ruled similarly with regard to Israels extension of its jurisdiction to formerly
Jordanian-controlled East Jerusalem.
THE RESPONSIBILITY OF STATES
The rights accorded to states under international law imply responsibilities. States
are liable for breaches of their obligations, provided that the breach is attributable to
the state itself. A state is responsible for direct violations of international lawe.g.,
the breach of a treaty or the violation of another states territory. A state also is liable
for breaches committed by its internal institutions, however they are defined by its
domestic law; by entities and persons exercising governmental authority; and by
persons acting under the direction or control of the state. These responsibilities exist
even if the organ or entity exceeded its authority. Further, the state is internationally
responsible for the private activities of persons to the extent that they are
subsequently adopted by the state. In 1979, for example, the Iranian government
officially supported the seizure of the U.S. embassy by militants and the subsequent
holding of diplomats and other embassy staff as hostages. A state is not internationally
responsible if its conduct was required by a peremptory norm of general international
law, if it was taken in conformity with the right to self-defense under the UN Charter,
if it constituted a legitimate measure to pressure another state to comply with its
international obligations, if it was taken as a result of a force majeure (French: greater
force) beyond the states control, if it could not reasonably be avoided in order to
save a life or lives, or if it constituted the only means of safeguarding an essential
interest of the state against a grave and imminent peril, where no essential interest
of the states toward which the obligation exists (or of the international community)
was impaired.
A state must make full reparation for any injury caused by an illegal act for which it is
internationally responsible. Reparation consists of restitution of the original situation if
possible, compensation where this is not possible, or satisfaction (i.e.,
acknowledgment of and apology for the breach) if neither is possible.
One controversial aspect of international law has been the suggestion, made by
the International Law Commission in its 1996 draft on State Responsibility, that states can
be held responsible for international crimes (comprising internationally wrongful
acts resulting from the breach by a state of an international obligation so essential for
the protection of the international communitys fundamental interests that its breach
is recognized as a crime by that community). Examples given included aggression,
colonial domination, and genocide. In addition to the argument that states (as distinct
from individuals) could not be guilty of crimes as such, serious definitional problems
arose, and there was concern over the consequences of such crimes for states.
Accordingly, in its draft articles finally adopted in 2001, the International Law
Commission dispensed with this politically divisive approach but retained the idea of
a more serious form of international wrong. The commission emphasized the
concept of serious breaches of obligations arising under a peremptory norm of
international law (i.e., the rules of jus cogens, or those deemed essential for the
protection of fundamental international interests). In such circumstances, all states
are under an obligation not to recognize such a situation and to cooperate in ending
it.
States may take up the claims of individuals injured because of the acts or omissions
of another state. In such circumstances, the injured persons must have exhausted all
domestic remedies to hold the state responsible unless these are ineffective.
Further, the injured person must be a national of the state adopting the claim.
Although states alone possess the right to grant nationality, if the claim is pleaded
against another state, the grant of nationality must conform to the requirements of
international law and, in particular, demonstrate the existence of a genuine link
between the individual and the state concerned.
Spatial definition of states
TERRITORY
The sovereignty of a state is confined to a defined piece of territory, which is subject
to the exclusive jurisdiction of the state and is protected by international law from
violation by other states. Although frontier disputes do not detract from the
sovereignty or independence of a particular state, it is inherent in statehood that
there should be a core territory that is subject to the effective control of the
authorities of the state. Additional territory may be acquired by states through
cession from other states (the Island of Palmas case in 1928); by the occupation of
territory that is terra nullius (Latin: the land of no one)i.e., land not under the
sovereignty or control of any other state or socially or politically organized grouping;
or by prescription, where a state acquires territory through a continued period of
uncontested sovereignty.
Under the UN Charter, sovereign title to territory cannot be acquired purely and
simply by the use of force. Express or implied consent is required under international
law for recognition of territory acquired by force, whether or not the use of force was
legal. When states are created from the dissolution or dismemberment of existing
countries, it is presumed that the frontiers of the new states will conform to the
boundaries of prior internal administrative divisions. This doctrine, known as uti
possidetis (Latin: as you possess), was established to ensure the stability of newly
independent states whose colonial boundaries were often drawn arbitrarily.
MARITIME SPACES AND BOUNDARIES

The sovereign territory of a state extends to its recognized land boundaries and to the
border of airspace and outer space above them. A state that has a coastal boundary
also possesses certain areas of the sea. Sovereignty over bodies of water is
regulated by four separate 1958 conventionsthe Convention on the Territorial Sea
and Contiguous Zone, the Convention on the Continental Shelf, the Convention on
the High Seas, and the Geneva Convention on Fishing and Conservation of the
Living Resources of the High Seasand by the comprehensive Law of the Sea treaty
(1982), which entered into force in 1994.
The territory of states includes internal waters (i.e., harbours, lakes, and rivers that
are on the landward side of the baselines from which the territorial sea and other
maritime zones are measured), over which the state has full and complete
sovereignty and exclusive jurisdiction. Through the Law of the Sea treaty and now
under customary international law, a state may claim a territorial sea of up to 12
nautical miles from the baselines (essentially the low-water mark around the coasts
of the state concerned), though, in cases where a coast is heavily indented, a series
of straight baselines from projecting points may be drawn. A state has sovereignty
over its territorial seas, but they are subject to the right of innocent passagei.e., the
right of all shipping to pass through the territorial waters of states, provided that the
passage is not prejudicial. Examples of prejudicial conduct include the threat or use
of force, spying, willful and serious pollution, breaches of customs, sanitary, fiscal,
and immigration regulations, and fishing. Coastal states may exercise a limited
degree of criminal jurisdiction with regard to foreign ships that are engaged in innocent
passage through their territorial seas (e.g., in cases where the consequences of the
crime alleged extend to the coastal state or where such measures are necessary for
the suppression of the traffic of illicit drugs).
The 1958 Convention on the Territorial Sea and Contiguous Zone provided that
states cannot suspend the innocent passage of foreign ships through straits that are
used for international navigation between one part of the high seas and another part of
the high seas or the territorial sea of a foreign state. The 1982 treaty established a
new right of transit passage for the purpose of continuous and expeditious transit in
straits used for international navigation between one part of the high seas or
exclusive economic zone and another. Some international straits are subject to
special regimes. The controversial Straits Question, for example, concerned restrictions
in the 19th and 20th centuries that limited naval access to
the Bosporus and Dardanelleswhich connect the Black Sea with the Sea of Marmara and
the Mediterranean Seato countries bordering the Black Sea.
A series of other maritime zones extend beyond territorial seas. A contiguous zone
which must be claimed and, unlike territorial seas, does not exist automatically
allows coastal states to exercise the control necessary to prevent and punish
infringements of customs, sanitary, fiscal, and immigration regulations within and
beyond its territory or territorial sea. The zone originally extended 12 nautical miles
from the baselines but was doubled by the 1982 treaty. The exclusive economic
zone developed out of claims to fishing zones. The 1982 treaty allowed states to
claim such a zone, extending 200 nautical miles from the baselines, in which they
would possess sovereign rights to explore, exploit, conserve, and manage the
natural resources of the seas and seabed; to exercise jurisdiction over artificial
installations and scientific research; and to protect and preserve the marine
environment. The zone was accepted as part of customary international law in the
ICJs 1985 decision in the dispute between Libya and Malta, which concerned the
delimitation of the continental shelf between them.
A state is automatically entitled to exercise sovereign rights to explore and exploit
the natural resources in an adjacent continental shelf (i.e., the ledges projecting from the
land into and under the sea). The shelf may extend either to the outer edge of
the continental margin or to 200 miles from the baselines where the outer edge of the
continental margin does not reach that distance. Thus, the continental shelf as a
concept in international law becomes a legal fiction where the shelf does not in fact
extend as far as 200 miles.
Problems have arisen over the delimitation of the various maritime zones between
adjacent and opposing states. International law generally requires equitable
resolutions of maritime territorial disputes. Although the definition of equity is unclear,
relevant factors include the impact of natural prolongation of the land territory (i.e.,
the basic principle that the continental shelf is a continuation of the land territory into
the sea), proportionality between the length of a disputing partys coastline and the
extent of continental shelf it controls, the principle of equidistance (i.e., a line of equal
distance from the two shores in question), and the existence (if any) of islands
between the coastlines.
Jurisdiction

Jurisdiction refers to the power of a state to affect persons, property, and

circumstances within its territory. It may be exercised through legislative, executive,
or judicial actions. International law particularly addresses questions of criminal law and
essentially leaves civil jurisdiction to national control. According to theterritorial
principle, states have exclusive authority to deal with criminal issues arising within
their territories; this principle has been modified to permit officials from one state to
act within another state in certain circumstances (e.g., the Channel Tunnel arrangements
between the United Kingdom and France and the 1994 peace treaty between Israel and
Jordan). The nationality principle permits a country to exercise criminal jurisdiction
over any of its nationals accused of criminal offenses in another state. Historically,
this principle has been associated more closely with civil-law systems than with
common-law ones, though its use in common-law systems increased in the late 20th
century (e.g., the adoption in Britain of the War Crimes Act in 1991 and the Sex
Offenders Act in 1997). Ships and aircraft have the nationality of the state whose flag
they fly or in which they are registered and are subject to its jurisdiction.
The passive personality principle allows states, in limited cases, to claim jurisdiction
to try a foreign national for offenses committed abroad that affect its own citizens.
This principle has been used by the United States to prosecute terrorists and even to
arrest (in 198990) the de facto leader of Panama, Manuel Noriega, who was
subsequently convicted by an American court of cocaine trafficking, racketeering,
and money laundering. The principle appears in a number of conventions, including the
International Convention Against the Taking of Hostages (1979), the Convention on
the Prevention and Punishment of Crimes Against Internationally Protected Persons
(1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984). The protective principle, which is included in the
hostages and aircraft-hijacking conventions and the Convention on the Safety of
United Nations and Associated Personnel (1994), can be invoked by a state in cases
where an alien has committed an act abroad deemed prejudicial to that states
interests, as distinct from harming the interests of nationals (the passive personality
principle). Finally, the universality principle allows for the assertion of jurisdiction in
cases where the alleged crime may be prosecuted by all states (e.g., war crimes,

crimes against the peace, crimes against humanity, slavery, and piracy).
Jurisdictional immunity exists in certain contexts. Diplomatic personnel, for example,
have immunity from prosecution in the state in which they operate. In the 1960s,
however, the Vienna Convention on Diplomatic Relations and the Vienna Convention on
Consular Relations stipulated that the level of immunity varies according to the
officials rank. Immunity is generally more extensive in criminal than in civil matters.
A countrys diplomatic mission and archives also are protected. International
organizations possess immunity from local jurisdiction in accordance with
international conventions (e.g., the General Convention on the Privileges and
Immunities of the United Nations of 1946) and agreements signed with the state in
which they are based. Certain immunities also extend to the judges of international
courts and to visiting armed forces.
Disputes between states
PEACEFUL SETTLEMENT
International law provides a variety of methods for settling disputes peacefully, none
of which takes precedence over any other. Nonbinding mechanisms include direct
negotiations between the parties and the involvement of third parties through good
offices, mediation, inquiry, and conciliation. The involvement of regional and global
international organizations has increased dramatically since the end of World War II,
as many of their charters contain specific peaceful-settlement mechanisms
applicable to disputes between member states. The UN may be utilized at several
levels. The secretary-general, for example, may use his good offices to suggest the
terms or modalities of a settlement, and the General Assembly may recommend
particular solutions or methods to resolve disputes. Similarly, the Security Council
may recommend solutions (e.g., its resolution in 1967 regarding the Arab-Israeli
conflict) or, if there is a threat to or a breach of international peace and security or an
act of aggression, issue binding decisions to impose economic sanctions or to
authorize the use of military force (e.g., in Korea in 1950 and in Kuwait in 1990).
Regional organizations, such as the Organization of American States and the African Union,
also have played active roles in resolving interstate disputes.
Additional methods of binding dispute resolution include arbitration and judicial
settlement. Arbitration occurs when the disputing states place their conflict before a
binding tribunal. In some cases, the tribunal is required to make a number of decisions
involving different claimants (e.g., in the dispute between the United States and Iran
arising out of the 1979 Iranian revolution), while in others the tribunal will exercise
jurisdiction over a single issue only. In a judicial settlement, a dispute is placed
before an existing independent court. The most important and comprehensive of
these courts is the ICJ, the successor of the Permanent Court of International Justice,
created in 1920. Established by the UN Charter (Article 92) as the UNs principal
judicial organ, the ICJ consists of 15 judges who represent the main forms of
civilization and principal legal systems of the world. They are elected by the General
Assembly and Security Council for nine-year terms.
The ICJ, whose decisions are binding upon the parties and extremely influential
generally, possesses both contentious and advisory jurisdiction. Contentious
jurisdiction enables the court to hear cases between states, provided that the states
concerned have given their consent. This consent may be signaled through a special
agreement, or compromis (French: compromise); through a convention that gives
the court jurisdiction over matters that include the dispute in question (e.g., the
genocide convention); or through the so-called optional clause, in which a state
makes a declaration in advance accepting the ICJs jurisdiction over matters relating
to the dispute. The ICJ has issued rulings in numerous important cases, ranging
from the Corfu Channel case (1949), in which Albania was ordered to pay compensation
to Britain for the damage caused by Albanias mining of the channel, to the territorial
dispute between Botswana and Namibia (1999), in which the ICJ favoured
Botswanas claim over Sedudu (Kasikili) Island. The ICJs advisory jurisdiction
enables it to give opinions on legal questions put to it by any body authorized by or
acting in accordance with the UN Charter.
Other important international judicial bodies are the European Court of Human Rights,

established by the European Convention on Human Rights; the Inter-American Court

of Human Rights, created by the Inter-American Convention on Human Rights; and
the International Tribunal for the Law of the Sea, set up under the Law of the Sea
treaty. The World Trade Organization (WTO), established in 1995 to supervise and
liberalize world trade, also has created dispute-settlement mechanisms.
USE OF FORCE

The UN Charter prohibits the threat or the use of force against the
territorial integrity or political independence of states or in any other manner
inconsistent with the purposes of the Charter; these proscriptions also are part of
customary international law. Force may be used by states only for self-defense or
pursuant to a UN Security Council decision giving appropriate authorization (e.g., the
decision to authorize the use of force against Iraq by the United States and its allies
in thePersian Gulf War in 199091). The right of self-defense exists in customary
international law and permits states to resort to force if there is an instant and
overwhelming need to act, but the use of such force must be proportionate to the
threat. The right to self-defense is slightly more restricted under Article 51 of the UN
Charter, which refers to the inherent right of individual or collective self-defence if an
armed attack occurs until the Security Council has taken action. In a series of
binding resolutions adopted after the terrorist September 11 attacks in 2001 against
the World Trade Center and the Pentagon in the United States, the Security Council
emphasized that the right to self-defense also applies with regard to
international terrorism. Preemptive strikes by countries that reasonably believe that an
attack upon them is imminent are controversial but permissible under international
law, provided that the criteria of necessity and proportionality are present.
It has been argued that force may be used without prior UN authorization in cases of
extreme domestic human rights abuses (e.g., the actions taken by NATO with regard
to Kosovo in 1999 or Indiasintervention in East Pakistan [now Bangladesh] in 1971).
Nonetheless, humanitarian interventions are deeply controversial, because they
contradict the principle of nonintervention in the domestic affairs of other states.
The use of force is regulated by the rules and principles of international humanitarian

law. The Geneva Conventions (1949) and their additional protocols (1977) deal with,
among other topics,prisoners of war, the sick and wounded, war at sea, occupied territories,
and the treatment of civilians. In addition, a number of conventions and declarations
detail the types of weapons that may not be used in warfare. So-called dum-dum
bullets, which cause extensive tissue damage, poisonous gases, and chemical

weapons are prohibited, and the use of mines has been restricted. Whether the use
of nuclear weapons is per se illegal under international law is an issue of some
controversy; in any event, the criteria of necessity and proportionality would have to
be met.