International law, 

also called public international law or law of

nations, 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. Important
elements of international law include sovereignty, recognition (which allows a
country to honour the claims of another), consent (which allows for
modifications in international agreements to fit the customs of a country),
freedom of the high seas, self-defense (which ensures that measures may be
taken against illegal acts committed against a sovereign country), freedom of
commerce, and protection of nationals abroad. International courts, such as
the International Court of Justice, resolve disputes on these and other
matters, including war crimes. See also asylum; immunity.
Primary Contributor: Malcolm Shaw

ARTICLE

from the
Encyclopædia Britannica

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 (1748–
1832).
The nature and development of international law
Definition and scope
According to Bentham’s 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
organizations—two 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 influential—though 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 actors—i.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,

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or private international law, which is concerned with the rules of municipal

law—as international lawyers term the domestic law of states—of 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 recommendations—except 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 ICJ’s 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 council’s 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 by reciprocity 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

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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 (1135–
1204) and the theologian St. Thomas Aquinas (1224/25–1274), became the
intellectual foundation of the new discipline of the law of nations, regarded as
that part

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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 law—e.g.,
the 12th-century Rolls of Oléron, 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 (1313/14–
1357), regarded as the founder of the modern study of private international
law, and Baldo degli Ubaldi (1327–1400), 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
(1486–1546), who was particularly concerned with the treatment of the
indigenous peoples of South America by the conquering Spanish forces, and
Francisco Suárez (1548–1617) emphasized that international law was
founded upon the law of nature. In 1598 Italian jurist Alberico Gentili (1552–
1608), 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

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of war and treaties. Gentili’s 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 (1583–1645) 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 the high
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 (1632–94), who stressed the supremacy of the law of
nature. In contrast, positivist writers, such as Richard Zouche (1590–1661)
in England and Cornelis van Bynkershoek (1673–1743) 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 (1679–1754) and the Swiss jurist
Emerich de Vattel (1714–67), 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 rights—which played a prominent role
in the American and French revolutions—was becoming a vital element in
international politics. In international law, however, the concept of natural
rights had only marginal significance until the 20th century.
Positivism’s influence peaked during the expansionist and industrial 19th
century, when the notion of

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state sovereignty was buttressed by the ideas of exclusive domestic
jurisdiction and nonintervention in the affairs of other states—ideas that had
been spread throughout the world by the European imperial powers. In the
20th century, however, positivism’s 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 1945—and 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 law—both its rules and its institutions—is
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 organizations—e.g., the Warsaw Pact organized by
the Soviet Union and the North Atlantic Treaty Organization (NATO)
established by the United States—and 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 world’s 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 ICJ’s 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

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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
globalization—the rapidly escalating growth in the international movement in
goods, services, currency, information, and persons—also became significant
forces, spurring international cooperation and somewhat reducing the
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 supplemented—and in some cases replaced
—by 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
states—one of the basic principles of international law—in reality some states
continue to be more important than others in creating and maintaining
international law.

Sources of international law

Article 38 (1) of the ICJ’s 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 terms—conventions, agreements, pacts,
general acts, charters, and covenants—all 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

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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 in good 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 state’s consent, which may be done by signature, an
exchange of instruments,

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ratification, or accession. Ratification is the usual method of declaring consent

—unless the agreement is a low-level one, in which case a signature is
usually sufficient. Ratification procedures vary, depending on the country’s
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 treaty’s 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 préparatoires (French:
“preparatory works”) and consideration of the circumstances surrounding the
conclusion of the treaty, may be used when the treaty’s 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

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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 Assembly’s 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 treaty’s 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 ICJ’s statute refers to “international custom, as evidence of a general
practice accepted as law,” as a second

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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 the process. 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 custom—the 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 consented—
except 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 ICJ’s 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

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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 (1927–
28), 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 ICJ’s 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 binding—except with respect to
certain organizational procedures—but 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
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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 France’s 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 state’s 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
law”—that 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

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states (e.g., other parties to the treaty that has been breached), in the breach
of erga omnes obligations, 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.
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 the Montevideo
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 disputes—e.g., those concerning Albania after World War I and
Israel in 1948—do 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 Länder [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 Germany’s Anschluss of Austria in 1938).

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

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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 conventions—the
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
Seas—and 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

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subject to the right of innocent passage—i.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 Dardanelles—which
connect the Black Sea with the Sea of Marmara and the Mediterranean Sea
—to 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 ICJ’s 1985 decision in
the dispute between Libya and Malta,

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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 party’s 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 the territorial 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

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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 1989–90) 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 state’s 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 official’s rank. Immunity is generally more
extensive in criminal than in civil matters. A country’s 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.

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 the Persian Gulf War in 1990–91). 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 India’s intervention in East Pakistan

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[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.

HIGH SEAS AND SEABED

Traditionally, the high seas beyond the territorial waters of states have been
regarded as open to all and incapable of appropriation. The definition of the
high seas has changed somewhat since the creation of the various maritime
zones, so that they now are considered to be those waters not included in the
exclusive economic zone, territorial sea, or internal waters of states or in the
archipelagic waters of archipelagic states.
The high seas are open to all states, with each state possessing the freedoms
of navigation and overflight and the freedom to lay submarine cables and
pipelines, to conduct scientific research, and to fish. On ships on the high
seas, jurisdiction is exercised by the flag state (i.e., the state whose flag is
flown by the particular ship). Nevertheless, warships have the right to board a
ship that is suspected of engaging in piracy, the slave trade, or unauthorized
broadcasting. There also is a right of “hot pursuit,” provided that the pursuit
itself is continuous, onto the high seas from the territorial sea or economic
zone of the pursuing state in order to detain a vessel suspected of violating
the laws of the coastal state in question.
The international seabed (i.e., the seabed beyond the limits of national
jurisdiction), parts of which are believed to be rich in minerals, is not subject to
national appropriation and has been designated a “common heritage of
mankind” by the Declaration of Principles

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Governing the Seabed (1970) and the Law of the Sea treaty. Activities in the
international seabed, also known as “the Area,” are expected to be carried out
in the collective interests of all states, and benefits are expected to be shared
equitably.

ANTARCTICA
The Antarctic Treaty (1959) prevents militarization of the Antarctic continent
and suspends territorial claims by states for the life of the treaty. Because it
provides no mechanism for its termination, however, a continuing and open-
ended regime has been created. There also are various agreements that
protect Antarctica’s environment.

Nonstate actors in international law

Individuals
Historically, states were the only subjects of international law. During the 20th
century, however, a growing body of international law was devoted to defining
the rights and responsibilities of individuals. The rights of individuals under
international law are detailed in various human rights instruments and
agreements. Although references to the protection of human rights appear in
the UN Charter, the principal engine of the process was the Universal
Declaration of Human Rights (1948; UDHR). The UDHR has been
supplemented by an impressive range of international treaties, including the
Convention on the Prevention and Punishment of the Crime of
Genocide, the International Convention on the Elimination of All Forms of
Racial Discrimination (1965), the International Covenant on Civil and
Political Rights (1966), the International Covenant on Economic, Social
and Cultural Rights (1966), the Convention on the Elimination of All
Forms of Discrimination Against Women (1979), the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984), and the Convention on the Rights of the Child (1989).
With the exception of the convention on genocide, these agreements also
have established monitoring committees, which, depending on the terms of
the particular agreement, may examine the regular reports required of states,
issue general and state-specific comments, and entertain petitions from
individuals. The committee against torture may commence an inquiry on its
own motion. The broad rights protected in these conventions include the right
to life and due process, freedom from discrimination and torture, and
freedom of expression and assembly. The right to self-determination and
the rights of persons belonging to minority groups are protected by the
convention on civil and political rights. In addition, the UN has established a
range of organs and mechanisms to protect human rights, including the
Commission on Human Rights (replaced in 2006 by the Human Rights
Council).
Human rights protections also exist at the regional level. The best-developed
system was established by the European Convention on Human Rights,
which has more than 40 state parties as well as a court that can hear both
interstate and individual applications. Other examples are the Inter-American
Convention on Human Rights, which has a commission and a court, and the
African Charter on Human and Peoples’ Rights (1982), which has a
commission and is developing a court.
In addition to the rights granted to individuals, international

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law also has endowed them with responsibilities. In particular, following the
Nürnberg Charter (1945) and the subsequent establishment of a tribunal to
prosecute Nazi war criminals, individuals have been subject to international
criminal responsibility and have been directly liable for breaches of
international law, irrespective of domestic legal considerations. Individual
responsibility was affirmed in the Geneva Conventions and their additional
protocols and was affirmed and put into effect by the statutes that created war
crimes tribunals for Yugoslavia (1993) and Rwanda (1994), both of which
prosecuted, convicted, and sentenced persons accused of war crimes. The
Rome Statute of the International Criminal Court, which entered into force in
2002, also provides for individual international criminal responsibility.

Current trends
International law has been transformed from a European-based system
enabling sovereign states to interact in a relatively limited number of areas to
a truly international order with profound and increasingly cooperative
requirements. Globalization has ensured that the doctrine of the sovereignty
of states has in practice been modified, as the proliferation of regional and
global international organizations demonstrates. In an increasing number of
cases, certain sovereign powers of states have been delegated to
international institutions. Furthermore, the growth of large trading blocs has
underscored both regional and international interdependence, though it also
has stimulated and institutionalized rivalries between different blocs. The
striking development of the movement for universal human rights since the
conclusion of World War II has led to essentially unresolved conflicts with
some states that continue to observe traditional cultural values. The rules
governing the use of force have focused particular attention on the UN, but
violent disputes have not disappeared, and the development of increasingly
 deadly armaments—including biological, chemical, and nuclear weapons (so-
called “weapons of mass destruction”)—has placed all states in a more
vulnerable position. Particular challenges are posed when such weapons are
possessed by states that have used them or threaten to do so. In 2003 the
United States and Britain led an attack against Iraq and overthrew its
government because they believed that the country continued to possess
weapons of mass destruction in defiance of binding Security Council
resolutions; the attack proceeded despite opposition from a majority of the
council to a proposed resolution explicitly authorizing the use of force.
Although terrorism is not a new phenomenon, the increasing scale of the
destruction it may cause, as well as the use by terrorists of modern forms of
communication such as computers and mobile phones, has raised serious
new challenges for international law—ones that may affect the interpretation
of the right of self-defense and pose a critical test for the UN.
Malcolm Shaw

LINKS

Year in Review

Britannica provides coverage of "international law" in the following Year in

Review articles.
% International Law (in  Law: Year In Review 2006 (law))
% private military firms  (in  Outsourcing War—The Surge in
Private Military Firms: Year In Review 2006 (private military
firm))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2005 (law))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2004 (law))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2003 (law))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2002 (law))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2001 (law))
% International Law  (in  Law, Crime, and Law Enforcement: Year In
Review 2000 (law))
% Law  (in  Law, Crime, and Law Enforcement: Year In Review 1999 (law))
% Law  (in  Law, Crime, and Law Enforcement: Year In Review 1998 (law))
% Law  (in  Law, Crime, and Law Enforcement: Year In Review 1997 (law))
% LAW  (in  Law, Crime, and Law Enforcement: Year In Review 1996
(law))
% LAW (in  Law, Crime, and Law Enforcement: Year In Review 1995 (law))
% Spratly Islands  (in  Spotlight: The Spat over the Spratlys: Year
In Review 1995 (Spratly Islands) )
% International Agreements.  (in  Law: Year In Review 1994)
% treaties and international court decisions  (in  Law: Year In Review
1993)

LINKS

Other Britannica Sites

Articles from Britannica encyclopedias for elementary and high school

students.
international law - Student Encyclopedia (Ages 11 and up)
The body of rules and customs by which sovereign states are guided in their
relations with each other is called international law. It is based only on mutual
consent of sovereign states, and it is effective either because the nations of
the world recognize that it is to their best interests to accept it or because
stronger nations are able to force their point of view upon weaker ones.

LINKS

External Web Sites

The topic international law is discussed at the following external Web sites.
Cornell University Law School - International Law

The Catholic Encyclopedia -

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International Law

Citations
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