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International law

(internationallaw)





International law deals with the relationships between states , or between persons or entities in different states. It sub-divides into "publicinternational law", and " private internationallaw ". When used without an adjective, "international law" generally refers to "public international law", and this articleconcentrates on that meaning.

Traditionally, international law had states as its sole subjects . With the proliferation over the last century of international organizations , they have been recognized as its subjects as well. More recentdevelopments in international human rightslaw , international humanitarian law and international trade law (e.g. NAFTA Chapter 11 actions)have led to individuals and corporations being increasingly seen as subjects of international law as well, something which goesagainst the traditional legal orthodoxy. Since international law increasingly governs much more than merely relations between sovereign states, it may be better defined as law decided and enforced at theinternational, as opposed to national level. See world government for trends and movements leading in this direction.

Contents

Sources of international law

International law knows three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 ofthe Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly andvoluntarily accept between themselves in treaties . International Customary Law isderived from a consistent practice of States accompanied by the so-called opinio juris, i.e. the conviction of States that thepractice set is required by law. Judgments and awards of international tribunals as well as scholarly summaries havetraditionally been looked to as persuasive sources for such legal principles in addition to direct evidence of state behavior.The general principles of law are those commonly recognized by the major legal systems of the world. Certain norms ofinternational law achieve the binding force of peremptory norms as toinclude all states with no permissible exceptions. Legal principles common to major domestic law systems may also be invoked tosupplement international law when necessary.

Enforcement by states

Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from thepressure that states put upon one another to behave consistently and to honor their obligations. The reality is that manyviolations of treaty or customary law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violationsmay be common in fact, states will still try to avoid the appearance of having disregarded international obligations.

States may also unilaterally adopt sanctions against one another such as the breaking of economic or diplomatic ties. Inlimited cases, domestic courts may even render judgment against a foreign state for an injury, though courts are understandablyreluctant to do so and typically prefer to leave these issues to heads of state.

States have the right to employ force in self-defense against an offending state that has attacked its territory or politicalindependence. This right is recognized under the UnitedNations Charter .

Enforcement by international bodies

In the case that diplomacy is considered inadequate, the UnitedNations has established the International Court of Justice to render judgments on the breach of a treaty or a legalcustom. However, jurisdiction may be had only with consent, and so the court has little power to address a dispute with unwillingparties. A treaty may also provide for specific procedures to resolve a disagreement or address a breach, such as referral to aparticular international body (i.e., the ICJ), or the appointment of an arbitration panel.

Violations of the UN Charter may also be raised by the aggrieved state in the General Assembly or brought to the attention of the Security Council . Enforcement measures may include resolutions censoring the offending state, economicsanctions, or even approval of military action if the violation involves the use of force.

Though states (or increasingly, internationalorganizations ) are usually the only ones with standing to address a violation of international law, some treaties, such asthe International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by memberstates to petition the international Human RightsCommittee .

History

Through the ages a code developed for the relations and conduct between nations. Even when nations were at war , envoys were oftenconsidered immune to violence.

The first formal attempts in this direction, which over time have developed into the current international law, stem from theera of the Renaissance in Europe .

In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. In the 16th and 17th centuries the Church gradually lost itsdirect influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning ofthe 17th century, several generalizations could be made about the political situation:

  1. Self-governing, autonomous states existed.
  2. Almost all of them were governed by monarchies.
    1. England had a constitutional monarchy.
    2. Not all despots were hereditary: the Holy Roman Emperor and the King of Poland were elected.
    3. Switzerland, the Netherlands, and many Italian city-states were republics.
  3. After the Seven Years' War, there was relative stability in Europe for 130 years (until the 1789 French Revolution).
  4. Land, wealth, trading rights, and monopolizing the new lands were the topics of war.

Some people assert that international law developed to deal with the new states arising, others claim that the lack ofinfluence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes.

The Dominican professor Francisco de Vitoria (in Latin Franciscus de Victoria) of theology at the University of Salamanca lectured on the rights ofthe natives. He did so while Spain was at the height of its power, after the violentSpanish conquest of Peru in 1536 . Charles V, Holy Roman Emperor , protestedagainst the friar , but in 1542 new laws put thenatives under protection of the Spanish crown . Vitoria is generally recognized asthe founder of modern international law.

The French monk Emeric Cruce ( 1590 - 1648 ) came up with the idea of having representatives of all countriesmeeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The NewCyneas ( 1623 ), choosing Venice to be theselected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course,during the Thirty Years' War ( 1618 - 1648 ), this was not acceptable to the Protestant nations. He also saidthat armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight thatinternational organizations are crucial to solve international disputes.

Hugo Grotius (or Huig de Groot) ( 1583 - 1645 ) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and gotsentenced to life in prison after going against Maurice ofNassau , son of William of Orange in a trial, but heescaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum ( Latin for "Free seas"), in which he challenged the claims and attempts of England , Spain , and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive texton international law. It was published only two years after The New Cyneas.

Much of Grotius's content drew from the Bible and from classical history. In his workhe did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just wartheory. A just war fits certain criteria:

  1. It can be to repel an invasion.
  2. It can be to punish an insult to God.
  3. There has to be a just cause (one of the two mentioned above).
  4. It has to be declared by the proper authorities.
  5. It must possess moral intention.
  6. It must have a chance of success.
  7. It must abstain from brutal practices.
  8. Its end result must be proportional to the means used.

The statesmen of the time believed no nation could escape war, so they prepared for it.

Thomas Hobbes ( 1588 - 1679 ) was a political philosopher who moved toFrance after his ideas raised antagonism from Parliament. In France, he tutored the exiled King of Scotland Charles II. Hismaterialistic views alienated the Catholic clergy, so he went back to England, where he lived until his death. In his bookthe Leviathan ( 1651 ), which was a revision of a previous work, he outlined hispolitical philosophy by stating that men are naturally selfishly individualistic and that their fear of a violent death is theprincipal motive behind their support of an absolute sovereign (this is known as the social contract theory). He believed thatthe sovereign should be absolute and that a monarchy was the most efficient form of a sovereign leader (he came to thisconclusion after living through the English civil war and seeing the problems of Cromwell's "Commonwealth"). He believed thattemporal powers should always be above ecclesiastical powers.

King Henry IV's Chief Minister, the Duke of Sully , proposed the founding of an alliance of the European nations that was tomeet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the GrandDesign, but was never established.

Modern International Law has its roots in the 1648 Treaty of Westphalia . International Law continued to develop with the colonization of the New World , the American Revolution , the French Revolution , the Napoleonic Wars ,and on into the 20th century .

After World War I , the nations of the world decided to form aninternational body. U.S. President Woodrow Wilson came up with the idea of a " League of Nations ". However, due to political wrangling in the U.S. Congress , the United States did not join the League of Nations , which was one of the causesof its demise.

When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1 , 1942, U.S. President FranklinD. Roosevelt issued the " Declaration by United Nations " on behalf of 26 nations who had pledged to fight against the Axis powers . Even before the end of the war, representatives of 50 nationsmet in San Francisco to draw up the charter for an international body toreplace the League of Nations . On October 24 ,1945 , the United Nations officiallycame into existence, setting a basis for all international law to follow.

See also

Related topics: international community , world government , nationality , terrorism , environmental agreements , international auxiliary language , state , territorialintegrity .




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