International Law: Notes

International Law

National vs. International Law

  • Traditionally, countries have the authority to decide and enforce laws within their borders using their police forces and judicial systems.

  • International law governs interactions between countries, covering areas like:

    • Global economics

    • Human rights

    • The environment

    • Armed conflict

  • This system relies on treaties and agreements that create a network of mutual consequences.

  • As globalization increases interactions between countries, the need for international laws arises, prompting questions about who should create and enforce these laws.

  • International law begins where national laws end, governing how countries interact and treat their citizens.

  • Historically focused on war and diplomacy, international law now encompasses trade, bankruptcy, intellectual property, and banking procedures.

  • There's a move to develop a worldwide criminal code to bring international criminals to justice.

  • Enforcement of international law has been challenging due to the lack of a global police force or judicial system. However, new institutions like the International Criminal Court and the International Court of Justice are gaining authority.

  • Some local governments are adopting international standards into their laws, allowing local police to enforce them.

  • Some large law firms are partnering with firms in other countries to serve global clients on global issues.

Creation of International Law

  • There isn't a single global government to create and enforce international laws.

  • Instead, countries agree to act or not act in specific ways.

  • The two main sources of international laws are treaties and customary practice.

Treaties:

  • Formal agreements between two or more countries, functioning like contracts with written promises signed by representatives.

  • Cover various areas, including trade and nuclear weapons control.

  • Can be:

    • Bilateral: Signed by two countries.

    • Multilateral: Signed by many countries.

  • Written provisions are binding on signing countries.

  • Enforcement mechanisms vary; some treaties have their own, while others rely on agencies like the International Court of Justice.

  • Advantage: Quick creation and clear explanation of the law.

  • Drawback: Only binds signatory countries.

  • Treaties can be called conventions, charters, covenants, protocols, pacts, acts, statutes, and agreements.

Customary Practice:

  • Established behaviors that a community accepts as rules.

  • Customs followed by countries for many years can become international law.

  • Example: Diplomatic immunity, which protects diplomats from arrest or prosecution.

  • Violating diplomatic immunity is seen as a violation of international law, binding all countries regardless of consent.

  • Weakness: Can be unclear and cause disputes.

Focus of International Law

  • Key areas include armed conflict, economics and trade, the environment, and human rights.

Armed Conflict:

  • Laws govern actions before, during, and after war.

  • Cover legitimate reasons for starting a war and acceptable behavior during war.

  • International law recognizes a country's right to use force in self-defense, with actions being proportional to the attack.

  • Interpretation can be complex; questions arise about what justifies self-defense and what is considered proportional.

  • The Nuclear Non-Proliferation Treaty (NPT) is a multilateral treaty aimed at preventing the spread of nuclear weapons, promoting peaceful use of nuclear energy, and achieving nuclear disarmament.

  • It went into effect in 1970 and was extended indefinitely in 1995, with 191 nations as signatories, including the five nuclear weapons states.

  • Some argue self-defense should only be in response to physical attacks, while others include pre-emptive strikes against potential military threats.

  • Once armed conflict begins, international humanitarian laws, such as the Geneva Conventions, apply, focusing on the treatment of civilians, prisoners of war, and the wounded and sick.

Economics and Trade:

  • International laws set rules for how nations and multinational companies interact, covering trade, monetary policy, and investments.

  • The goal is to create a level playing field with consistent rules.

  • Some laws regulate private company transactions, while others apply to trade agreements between nations.

Environment:

  • International environmental laws encourage countries to collaborate on sustainable development, biodiversity, endangered species, hazardous materials, climate change, and pollution.

  • Treaties like the UN Convention on Biological Diversity and the Convention on International Trade in Endangered Species exemplify this.

  • For a state to be bound by a treaty, the state must ratify it, or officially consent to be bound by that treaty. Simply signing a treaty is not ratifying it.

Human Rights:

  • International law governs how a country treats its own citizens.

  • The UN Charter and the Universal Declaration of Human Rights (UDHR) are central to international human rights law.

  • The UDHR, adopted on December 10, 1948, lists fundamental human rights to be universally protected.

  • The UN urged member countries to publicize the UDHR for dissemination and discussion in schools and educational institutions.

  • Although not legally binding, the UDHR has become a standard for countries worldwide.

  • The UN has expanded human rights law to protect women, children, people with disabilities, minorities, and other vulnerable groups from discrimination.

  • The Geneva Conventions are a series of treaties that deal with the treatment of civilians, prisoners of war, and sick and wounded soldiers during wartime. The first Geneva Convention was adopted in 1864.

Enforcement of International Law

  • International treaties and agreements protect human rights globally, with agencies like Amnesty International and Human Rights Watch enforcing these laws.

  • Countries are generally expected to prosecute human rights offenders within their borders; international agencies intervene when a country cannot or will not prosecute.

  • The UN Human Rights Council, established in 2006, comprises 47 countries promoting and protecting human rights worldwide.

  • The council addresses human rights violations and makes recommendations to the UN.

  • Every four years, the Human Rights Council reviews the human rights records of all 192 UN member states to improve human rights in every country.

Tribunals:

  • After World War II, the Allied powers authorized an international military tribunal to prosecute Nazi officials for war crimes and crimes against humanity.

  • Trials were conducted in Nuremberg in 1945, indicting twenty-four Nazi leaders.

  • The Nuremberg and Tokyo tribunals served as models for prosecuting war crimes and crimes against humanity under international law.

  • The UN has since used tribunals to prosecute war crimes and genocide.

  • Human rights are basic rights that every person has, regardless of nationality, race, ethnicity, religion, gender, sexuality, class, or other characteristic.

International Criminal Court (ICC):

  • Established by the 2002 Rome Statute, the ICC is the first permanent court for prosecuting individuals who commit serious war crimes.

  • The ICC prosecutes individuals, not nations, and operates independently from the UN.

  • It takes cases from any country but only acts when nations are unwilling or unable to prosecute themselves, focusing on the most serious crimes.

  • As of 2017, 123 countries have ratified the Rome Statute; some nations, including China, India, and the United States, have not.

International Court of Justice (ICJ):

  • The ICJ resolves disputes between nations on questions of international law, aiming to resolve conflicts peacefully.

  • Made up of judges from 15 different nations, the court meets in The Hague, Netherlands.

  • The ICJ conducts hearings and trials and issues legal opinions.

  • For example, the ICJ addressed the issue of Israel building a wall in the West Bank in order to protect itself from suicide bombers.

  • The ICJ’s decisions are non-binding.

Other Enforcement Methods:

  • Some treaties have their own enforcement provisions.

  • Disputes can be resolved through arbitration or referred to the ICJ.

  • When no enforcement method is defined, countries use reciprocity, collective action, and shaming to punish non-compliance.

Reciprocity:

  • If a country commits an offense against another country, the other country can retaliate with the same behavior.

Collective Action:

  • Occurs when several nations act together against an offending country to punish it.

  • Example: The UN coordinated joint military action to remove Iraqi forces from Kuwait in 1990.

  • Economic sanctions, such as trade barriers, tariffs, and restrictions on financial transactions, are also used.

Shaming:

  • The threat of negative publicity can influence a nation’s actions, particularly concerning human rights.

Sovereignty

  • Nations have been sovereign, possessing the right to create their own rules and handle their own affairs.

  • All nations have the same rights to decide what happens inside their borders.

  • Globalization is changing this idea of state sovereignty.

  • Through international treaties, more countries are giving up parts of their sovereignty to give their citizens basic rights that are agreed upon by the global community.

  • Countries are working together for a more just and healthy global community.