International law refers to principles and rules generally applied to deal with conduct of States and international organizations in relation to international relations. It is also applied by private individuals, transitional companies, and minority groups. A State refers to a permanent population, territory, or government with the capacity to enter into relations with other States. Thus, it should be fully independent in order to be recognized by other States. The international legal system refers to the horizontal system that States dominate in principle of being considered equal and sovereign. International law was therefore developed and implemented by States with access to International Court of Justice and capable of being members of United Nations with sovereignty over territory. Conversely, international organizations refer to establishments facilitated by States through international agreements. Their powers are however limited to those conferred on them in the constituent document. More so, they have a limited degree of international personality compared to member States. They can however enter into international agreements with the representatives having certain privileges and immunities. For example, United Nations Charter of 1945 sets out and clarifies the powers the international organization (Klabbers 23).
The authority of the General Assembly on human rights as well as socioeconomic issues is however limited to discussion of particular issues and making appropriate recommendations. Although International Court of Justice is the main United Nations judicial organ with power to make binding decisions on queries of international law referred by States while giving advisory opinions, the Security Council has authority to make decisions that are binding to all member States (Klabbers 21).
Sources and Obligations of International Law
The sources of international law are listed in Article 38(1) of the Statute of International Court of Justice. They assert that the court should apply international conventions either generally or particularly in order to establish rules that can be recognized and expressed by contesting States. They also ascertain that International Court of Justice should apply international custom as evidence of general practices that are accepted as law. General principles of the international law however, should be recognized and applied by the court as well as civilized nations. Lastly, the court should apply subject to provisions of international law Article 59, judicial decisions and teachings of highly qualified publicists from various nations. They should however be subsidiaries in determining rules of international law (Klabbers 21).
General Principle of Law and Customary Law
General principles of law are also recognized as sources of law as recognized by civilized nations as they apply major legal systems. For example, persons intentionally harming others should pay compensations and/or male reparation. The general principles of law are however often used when treaty provisions and clear rules of customary law fail to exist. Thus, International Custom or Customary Law is also a source of international law. It is accepted as law by being constantly and virtually used by States uniformly over a period of time. It binds all States to allege existence of rule of customary law has a burden of proving its existence to show consistence and virally practice among the States. For example, in order to examine practice of States on military uses of outer space, the particular practices of the States with activities in space should be examined (Klabbers 24).
As a result, International Court of Justice requires States engaging in alleged customary practices to do so out of opinio juris or sense of legal obligation. Thus, they should not do so out of comity or due to political pressure. This is because opinio juris, referring to serious obstacles in establishing rules as customs, is complex in finding evidence to affirm a State followed a particular custom law practice. Thus, if a particular practice is widely used by States with no contrary State practice being proven, International Court of Justice can find existence of rule of customary law. This however involves either applying an assumption that opinio juris was satisfied or failed to be mentioned. Thus, finding consistent state practice among States with most interests in an issue with zero or minimal controversy to State practice is crucial (Klabbers 24).
Judicial Decisions and Writings of Publicists
Statute of International Court of Justice asserts that the court should apply judicial decisions and teachings of the most highly qualified publicists as subsidiary means of determining rules of law. Judicial decisions and writings of publicists have not always formed sources of international law. They have however helped the International Court of Justice to identify scope of customary law. They also help in properly interpreting a treaty and existing general principles. The hierarchy sources of international law with judicial law, decisions, and academics can therefore be misplaced. United Nations has ensured International Court of Justice is the main court with authority to make decisions identifying and articulating international law riles based on general principles of law, customary law, and treaties as well as judicial decisions of national and international courts and tribunals and writings of jurists (Klabbers 26).
Treaties or international conventions are the final sources of international law. They are forms of written agreements among States governed by international law and referred to by different names such as conventions, protocols, covenants, and exchange of notes. States entering into an agreement that should not be recognized as a treaty refer to it as a Memorandum of Understanding. In such a case, the agreement should not be governed by international law. Bilateral, multilateral, global, and regional treaties according to international law are set out in the 1969 Vienna Convention, Law of Treaties. It contains basic principles of treaty law as well as procedures on how treaties can be binding and entered into force. Consequences of breaching and principles of interpreting treaties are also clarified. Pacta sunt refers to the basic principle underlying the law of treaties. It means each treaty binding and in force should be performed in good faith. Although treaties are not binding on third States without consent, some provisions can ensure they are binding on all States as rule of customary international law (Klabbers 22).
Currently, there are global conventions that cover major topics of international law. They are adopted at international conference after being opened for signature. Treaties can be referred by place and year of adoption. However, if a State becomes a signatory to a treaty it should not be bound by the treaty. Rather, it should undertake the obligation of refraining from acts capable of defeating objects and purposes of the treaty. Thus, a State should express its consent to be bound by the provision of the particular treaty after depositing an instrument of accession or ratification to official depository of the treaty. In case a State is a signatory to international convention, it should also send an instrument of ratification. Conversely, if it is not and decides to be a party, it should send an instrument of accession. The two documents however provide the same legal effect. In order for a treaty to enter into force, a certain number of States should express their consents to be bound by sending their instruments of either accession or ratification. Consequently, the treaty is enforced and the States referred to as parties to the treaty. It is however crucial for each treaty to be interpreted in good faith in relation to the ordinary meaning given to the terms of the treaty in context, object, and purpose. Travaux Preparatoires refers to the preparatory work of the treaty and circumstances of its conclusion. It is therefore a supplementary means of interpretation in case of ambiguity (Klabbers 22).
Writing and Enforcing International Law
Hard and Soft Law
These terms are increasingly applied in writing international law. The term hard law refers to binding laws including treaty obligations and resolution of United Nations Security Council that States’ have agreed in accordance to rules of international law. Soft law on the other is applied in two diverse situations. Foremost, it is applied when treaty obligations are vaguely expressed or using flexible terms instead of clear and concrete stipulations. Several legally binding international law instruments use this form of drafting including the Convention on Biological Diversity of 1992 and The Vienna Convention for the Protection of the Ozone Layer of 1987. Secondly, the term soft law is applied when principles and guidelines of international law despite not being legally binding having the capacity to shape behavior of the States. International law principles using soft law can either develop international conferences or be formulated in non-binding agreements. Soft law is applied in such cases to articulate principles that can be subsequently developed into binding customary law. For example, Agenda 21 agreement was developed during the Rio United Nation Conference on Environment and Development in 1992. It was an eight-hundred-page action plan that related to the environment and developments. Soft law was applied to articulate principles that could be subsequently developed into binding customary law (Klabbers 32).
International law is a universal system determining relations between States and international organizations including United Nations. It is therefore mostly made between States relating with each other. However, its effects are felt by other entities commonly referred to as non-State actors including individuals, ethnic, religious and linguistic minorities, corporations, militant groups, and other parties wishing to secede from a State and/or collective group of people. The modern system of international law was developed in Europe. The process commenced in the seventeenth century (Klabbers 36).
Currently, it is accepted by all member States globally. Rules and principles of international law have therefore been increasingly considered as crucial in determining the function of the interdependent world. For example, they determine how international economic law is applied in solving issues allied to trade, foreign investments, and intellectual property. They also influence how human rights are applied to protect refugees. Consequently, they determine use of armed force by States and non-State actors especially in order to counter-terrorism regulations. For example, actions of United Nations against terrorism have been applied as background information to determine how States can rely on international law to counter terrorism and protect the environment (Klabbers 36).
Ultimately, international law should resolve international disputes while regulating and shaping States’ behaviors to prevent violations and provide remedies in case they occur. There however lacks an international police force to oversee obedience and maintenance of international legal standards when enforcing international law. Compulsory enforcement mechanisms for settling disputes are also lacking. This has led specialized courts, treaty monitoring bodies, and tribunals as well as the International Court of Justice to increase in number and expand their roles. Courts and national laws are vital in implementing international law. For example, the Security Council can allow use of coercive economic sanctions and armed force to enforce international law as witnessed between 1990 and 1991 after Iraq invaded Kuwait (Klabbers 35).
The authorization should however be under the United Nations Charter. This has led international law to be enforced through diverse methods including diplomatic negotiations, mediation, public pressure, arbitration, and conciliation. Consequently, international law has been lacking coercive enforcement procedures available to domestic law. Thus, interests of majority of the States ensure stability and predictability depending with the type of relationships they maintain with the other States. The obligation to comply ensures they help each other to uphold international law. More so, they have to share mutual benefits such as they type of each States’ interests to be fulfilled if they abide by international law (Klabbers 35).
Each subject of international law however has to exercise the following international duties and rights. Foremost, an international legal person should be capable of accessing international tribunals in order to claim and act on the rights conferred by international law. Consequently, each body or entity recognized and accepted as capable of exercising international duties and rights should have the power to make agreements involving binding treaties according to international law. They should also have the capacity to implement either some or all of imposed obligations of international law. Lastly, subjects of international law should enjoy some and all of the immunities provided including jurisdiction of domestic courts of other States. All subjects however should maintain a permanent association of States with lawful objects. They should also have distinct legal powers and purposes from member States. Lastly, they should exercise powers internationally without being constrained by domestic law (Klabbers 37).
International law should therefore be differentiated from domestic law as follows. International law deals with rights and duties of States as they maintain relations with each other and international organizations. Conversely, domestic also known as municipal or national law refers to law within a State. It is therefore concerned with the duties and rights of legal persons residing in that particular State. Thus, the processes of making and enforcing international and domestic laws are different (Klabbers 37).
Participants in International Law Making
Several parties are included in the making of international law including non-government and inter-government organizations as well as States that are regarded as the most important participants. NGOs play an influential role in the making of international law. For example, civil society actors have played a significant role of leading the process of creating international law. This has led NGOs to enjoy a greater access to inter-governmental negotiations despite the privilege being neither uniform nor universally guaranteed. Some complexities however have developed due to NGOs participating in international law making. For example, they were considered and described as pressure groups lobbying for particular causes or outcomes to inter-governmental negotiations. This has led political perspectives to be applied in order to determine the formal mandate from the constituency to define and represent NGOs’ interests and claims (Klabbers 27).
They however continue to enjoy greater legitimacy than governments elected through mass democratic procedures. They also face minimal difficulties in gaining basic access to negotiation procedures while overstating their roles in decision-making. They are however limited in scope and subject according to the will of States retaining the monopoly on decision-making. Thus, NGOs have historically shown and expressed little to no interest in the work of International Law Commission. More so, civil society has presently reduced participation in global legal stages of making international law. Consequently, NGOs have been establishing longer-term working relations with the States to sustain their function of influencing outcomes of negotiations (Klabbers 27).
International law is therefore made through a wide variety of procedures by a growing number of entities and individuals. For example, some States lack the resources and will to follow each process involved in making international law. Consequently, there lacks unified approaches in making international law prompting law makers to feel less constrained by existing practices and processes. As a result, a greater space for innovation has allowed the States and other entities involved to establish and tailor rules on applying international law to solve specific issues. Thus, evolution and changes in process of making international law have been relatively common. A complete analysis of the process of making international law therefore requires appreciating roles played allied to innovation and evolution while ensuring the law remains relevant (Klabbers 28).
States involved in making international law should however exhibit the following three fundamental rights. The fundamental right of sovereignty should allow States to exercise political control within their territories. This is because States can fail to intervene in internal affairs of other States depending on the extent of the domestic jurisdiction and membership of international organizations. For example, each State has customary international law to protect and promote human rights. The law should therefore legitimately consider the matters involved at international level disregarding those within a State’s domestic jurisdiction (Klabbers 28).
The fundamental right of equality ensures all States have rights and duties that are equal among all members of the international community. For example, the General Assembly of United Nations ensures each State irrespective of the realities of power has a vote. Finally, the fundamental power of political independence and territorial integrity is guaranteed through Article 2(4) of United Nations Charter. It requires States to refrain from international relationships threatening to use force against political independence, sovereignty, and territorial integrity of any particular State (Klabbers 24).
States, international organizations, and nationality individuals and corporations constitute subjects of international law. United Nations, Security Council, and the General Assembly as well as the International Court of Justice are the most active institutions linked to international law. The subjects and institutions ensure international law duties and rules are enforced according to the set-out principles and immunities of jurisdictions. International law is therefore applied in settling international disputes, intervening on matters beyond domestic jurisdictions in any State, and enhance corporation among member States in accordance with the Charter. International law also ensures issues allied to equal rights, sovereignty, and self-determination of the subjects is upheld. This is because the relationships fulfill in good faith the obligations they assume according to international law. Negotiations, arbitrations, judicial settlements, inquiries and binding and non-binding mechanisms should be applied settling international law dispute resolutions. Consequently, use of force can be avoided enhancing the ability of international law for States and international organizations to maintain their relationships.
Klabbers, Jan. International Law. Cambridge, Cambridge University Press, 2013. Print