International law

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I'm seeing this phrase tossed around more and more.

My question is does it really exist?

Is there an international court system?

I'm not a lawyer, but to the best of my knowledge I've never heard of course being taught in international law or even someone who owned a set of international law books?

Does the U.N. somehow control it?

I'm guessing that people are interpreting treaties between nations as international law. How does this effect nations that are not a part of the treaty? Can they be held liable for something they don't agree with.

I'm particularly stuck with this in the issue of human rights. Now I'm fairly certain most of the 1st and 2nd world countries probably signed something saying what human rights are. However, if a third world country doesn't sign (or care) are they somehow now a rogue state?

Does all this talk about international law somehow lessen the soverign powers of each individual nation?

 

I think that you'll find some answers here.

 

There is no law on the international field as there are within states, for all really important purposes it is the law of the jungle. There are however a set of treatises signed by most countries in the world. As for details I am not very well versed, as Tal said, wait for Ragusa he is a lawyer after all.

 

Guess today is your lucky day, friend I'm not yet a graduated lawyer (still studying), but I can help you.

International law comes from two basic sources: custom and treaty. A custom must meet certain specific conditions to become law. Most of all it must be practiced by the authorities of a given country with respect to other countries in question (as it was the case with Portuguese enclaves in India being allowed passage through Indian land) and bear some character of custom law. Most of top importance international law rules are derived from custom law, especially in diplomacy and war.

Treaties become law between the parties in a fashion similar to contracts in civil law. Disputes are settled either in a diplomatic way or by bringing them before an international court - whether it's a UN court or a court specifically appointed for the purpose, be it even one case only.

The UN has control over treaties developed and signed under its auspices. Most of important multi-side treaties now are, actually. It is, however, not a planetary government of any sort, so it has no direct control over treaties made without calling upon the UN Chart and generally UN-related treaties, bodies etc. In such cases, UN can only take action in case of violation of any UN regulations on the part of countries being under obligation to obey them. Some treaties serve exclusively the purpose of commissioning an international court.

As for sovereign powers, yes, they can be and are limited by treaties in a way similar to how civil contracts bind an individual. If a country chooses to be bound and held liable as a result, it becomes so.

As for the accountability of states that are not party to any treaties, that's where custom law comes in. If the matter is internal and not involving other countries, the case is always difficult and all measures taken are very hard to justify under international law, as one of its most important custom law rules is non-involvement of foreign countries in internal affairs. Human rights serve here, most often, or some widely interpreted hostility towards the intervening country.

 

Ah well, late at the scene ...

Chevalier has already given correct explanations to your questions, but I will try to give you a brief overview where I think points, which are especially important, should be stressed accordingly for better understanding.

• Q: My question is does it really exist?
  
  A: It definitely does. Its cornerstones are soverign equality of all nations, territorial sovereignty, the principle of consensus as an experession of sovereignty and reciprocity. As Chev pointed out right, the logical consequence of sovereignty is non-involvement in the internal affairs of foreign countries.
  
  It regulates why the US can get mail from foreign countries, that there is a US ambassador in Berlin and a German one in Washington, how you can get help from your consul when you're in trouble in a foreign country, it regulates how and why you're allowed to travel around the globe and so on. It is the glue that holds the world and the international relations together - by obliging countries to cooperate for mutual benefit.
  The principle of reciprocity means that you only give as much as you get: The US violate trade treaties withe Europe, and Europe retaliates with penalties, and vice versa.
  .
• Q: Is there an international court system?
  
  A: Yes there is. There are courts to settle international disputes, to name a few, the international court in Hague, the international court for the law of the sea in Hamburg, the european court in Luxemburg and so on.
  
  They have jurisdiction insofar as the parties have agreed to it. That is the principle of consensus which reflects the sovereign equality of countries. Consensus is the fundamental cornerstone of international law - which explains the worldwide anger abbout unilateralism.
  The principle of agreement to jurisdiction is best explained at the notorious case US vs Nicaragua. The US agreed to the jurisdiction of the international court - for that case only - and when they felt they would loose, they withdrew their agreement for that case. That prevented the US from being sentenced for agression on Nicaragua.
  .
• Q: I'm not a lawyer, but to the best of my knowledge I've never heard of course being taught in international law or even someone who owned a set of international law books?
  
  A: Well there are courses if I remember right and there are both books explaining internationa law, on how to use and interprete it, as well as more genuine "International lawbooks": Collection of treaties, the actual international law.
  .
• Q: Does the U.N. somehow control it?
  
  A: Nope, as Chev said well, the UN is not a world government. It has played a key role in codifying customary law, like the universally accepted vienna treaties on diplomatic relations. And the UN leads some treaty negotiations, but it is not that they have any power over them.
  They are like notarys though, in a way that at the UN you can deposit treaties, so that in case of a conflict the UN can act as a negotiator, and that there is clarity on the legal situation in the world - the founders of the UN wanted to make diplomacy public, in response to the secret diplomacy that brought so much harm in WW-II and before.
  .
• Q: I'm guessing that people are interpreting treaties between nations as international law. How does this effect nations that are not a part of the treaty? Can they be held liable for something they don't agree with.
  I'm particularly stuck with this in the issue of human rights. Now I'm fairly certain most of the 1st and 2nd world countries probably signed something saying what human rights are.
  However, if a third world country doesn't sign (or care) are they somehow now a rogue state?
  
  A: First of all, international law knows no rogue states. That is a propagandistic term. States are per se equal. That is, legally the US and Iraq are equals, even an Iraq ruled by Saddam.
  That might be hard to swallow for some people but that's a simple fact. International law is based on the sovereign equality of nations.
  
  And basically you're right, international law only binds a country as far as it agrees. But it also has to make its disagreement clear:
  That is shown on the example of the global outcry on US unilateralism - that made clear that the rest of the world does not agree with the US postition and that the US pre-emptive action is not at all accepted as a change in international customs - as they require consensus to emerge.
  
  So when a third world country, that hasn't signed a human rights treaty, doesn't care about human rights, what then? That's a complicated issue and an interesting one.
  There is unwritten universal law, ius cogens, which is binding everone and every nation, without the need to ratify it or sign a treaty. Interestingly the Nuremberg trial was based on that: It includes abstract norms like Crimes Against Humanity. These norms oblige everone, and every country is responsible to hold up these standards and can be held accountable if it doesn't.
  
  And then, there is still custom: When a rule or custom has been in place for a long time, and been used for a long time by all parties, they agree on the legality of it and set a precedent. That means for example: A treaty internationaly codifying human rights that is in use and general acceptance for a long time, then also aquires the rank of international custom and would then be binding even for non-signatory countries.
  
  But that is mainly theoretical. It does not give the international community the right to intervene in another country, remember, the principle of non-involvement in internal affairs.
  The international community can intervene when there is a risk of "spillover", that the conflict spreads to neighbouring countries, then it becomes an international affair and intervention can be justified.
  Only in very, very grave and rare exceptions a massive violation of human rights can justify an intervention in internal affairs - but that is a very very progressive and very very disputed point of view I am hesitant to share.
  .
• Q: Does all this talk about international law somehow lessen the soverign powers of each individual nation?
  
  A: That is a point that is very very frequently misunderstood, especially on the other side of the pond. Indeed, international law imposes limitations on sovereignty.
  But the questions that have to be asked to interprete it right are: How come? Why?
  
  International law binds a country according to the obligations it - it itself - has accepted by custom or by treaty.
  That is, limitations of power based on international treaties are self-imposed - no one forced the US to sign the UN charter. That is, the international law only reflects these self imposed limitations, the cause is a national act, the signing and ratification of the treaty.
  
  It isn't as if some external entity goes and tries to *enslave* a nation by forcing its will on it. I strongly feel that some uninformed people in the US preceive the UN that way (speak about vetoing US plans nobody else likes) in a quite emotional way. But that is simply nonsense.
  
  When the US signed the UN charter they accepted the authority of the UN security council. When they now go and ignore it, purely hypothetical , the rightwingers can howl and lament on "lost moral authority" and as much as they like - it doesn't make a difference: That would violate the spirit and letter of the charter, and therfor be a violation of international law.

This is just a sketch, if there are more questions or open questions, just ask.

EDIT: Fixed some typos and changed a few lines for better understanding.

[ March 21, 2004, 12:11: Message edited by: Ragusa ]

 

OK, so if I understand correctly, international courts can be either a UN court or formed for a one-time purpose. A couple of questions:

1. In the case of one-time courts, is it kind of like appointing an arbitrator, where all involved parties agree on who will deciding the case?

2. In either case, what does international law provide for in the way of penalties in the case of violations? Does it depend on whether it's a one-time court or a UN court? Are we basically talking about sanctions and fines?

 

Not precisely. If the countries so desire, they can commission any type of court to settle disputes within the boundaries outlined by the treaty establishing such a court. The European Court of Justice (an EU institution), for example, has lasted for 40 years.

Exactly. The difference from a diplomatic solution is that in this case the dispute is solved by a judicial proceeding - which in most cases is a trial. The sentence relies basically on the terms and conditions of the treaty. The parties can also agree to the application of equity norms, which is a common practice. Also, the customary ius cogens (mentioned by Ragusa above) is applied before the rules laid down in the treaty called upon.

In one-time courts commissioned directly by the litigants (plaintiff and defendant states), that would be reparations. Fines, punitive damages and the like don't apply as it's basically solving a dispute rather than inflicting justice. In most cases it will be deciding the border, interpreting a treaty, clearing up duties and obligations, settling accounts etc.

When treaties binding many countries come into question, like for example in UN courts, or the ECJ, or fixed courts within an internation organisation, the problem of maintaining order and inflicting justice appears. Consequently, fines, sanctions and others appear.

I guess it would be good to explain what ius cogens is before someone asks. So, in civil (private) law there are fixed rules that cannot be changed by any agreement between the parties. This is ius cogens. Between sovereign states it works in the same way, which means that treaties between states can't violate any ius cogens norms. There is no treaty enumerating the ius cogens norms: they are all customary. The UN Chart and similar high-ranking treaties can be elevated to the same rank as ius cogens and applied before any lower-ranking treaties, but that is only between the parties to the high-ranking treaty. Contrary to ius cogens, which is one and same for all. At least in theory, because there is always the supreme rule of sovereignty (nb a ius cogens one ).

Ragusa also brought up the abstract rules governing such cases as the trial in Nuremberg. Those rules, basically, lay the basis of internation accountability of a private individual for:

crimes against humanity
crimes against peace
crimes of war
drug trade

Also, many countries claim criminal jurisdiction in crimes committed on their citizens, regardlessly of who has committed the crime and on whose territory. It is not really in accordance with international law, but serves as an excuse. It is also possible to try and sentence prisoners of war under certain conditions (meaning for example that good old court-martial doesn't go).