Overview of International Law and Institutions

Full Title of Reference

Overview of International Law and Institutions

Full Citation

Curtis A. Bradley and Jack L. Goldsmith, Foreign Relations Law: Cases and Materials (4th ed. 2011).

Categorization

• Resource by Type: Article
• Threats and Actors: States
• Issues: Cyberwar
• Approaches: International Law (including Laws of War)

Synopsis

Sources of International Law

International law can be divided into two categories: public international law and private international law. Traditionally, public international law regulated the interactions between nations, such as the laws of war and the treatment of diplomats. Since the mid-twentieth century, it also has regulated to some extent the way nations treat their own citizens. Private international law, by contrast, encompasses issues relating to transactions and disputes between private parties, such as international commercial standards, international choice of law rules, and the standards for enforcing foreign judgments. References in this course to international law are primarily references to public international law.

There are two principal sources of public international law: treaties and customary international law. Treaties are, quite simply, binding agreements among nations. All such agreements are referred to as ‘‘treaties’’ under international law, regardless of what they are called under each nation’s domestic law. By contrast, under U.S. domestic law, ‘‘treaties’’ refers only to the international agreements concluded by the President with the advice and consent of two-thirds of the Senate and does not include ‘‘executive agreements’’ made by the President alone or with a majority approval of Congress.

There are both ‘‘bilateral’’ treaties (between two nations) and ‘‘multilateral’’ treaties (among multiple nations). Typical bilateral treaties include extradition agreements, Friendship, Commerce, and Navigation treaties, and Bilateral Investment Treaties. Multilateral treaties—some of which resemble international legislation in their scope and detail—cover a wide range of subjects, including international trade, the environment, and human rights.

Customary international law results from the general practices and beliefs of nations. By most accounts, customary international law forms only after nations have consistently followed a particular practice out of a sense of legal obligation. It is also commonly accepted that nations that persistently object to an emerging customary international law rule are not bound by it, as long as they do so before the rule becomes settled. Nations that remain silent, however, may become bound by the rule, even if they did not expressly support it. Silence, in other words, is considered a form of implicit acceptance.

Treaties and customary international law have essentially equal weight under international law. As a result, if there is a conflict between these two sources of international law, the later of the two will be controlling. International and domestic adjudicators will likely attempt to reconcile these two sources, however, if that is reasonably possible. Although it is not uncommon for treaties to supersede customary international law, there are relatively few examples in which customary international law has superseded a treaty.

Before the twentieth century, customary international law was the principal source of international law. Subjects regulated by customary international law included maritime law, the privileges and immunities of diplomats, and the standards for neutrality during wartime. Although customary international law continues to play an important role today, its importance has been eclipsed to some extent by the rise of multilateral treaties, which now regulate many areas previously regulated by customary international law.

Some customary international law rules are said to constitute “jus cogens” or “peremptory” norms. A jus cogens norm is, according to one widely accepted definition, “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” These norms transcend requirements of national consent, such that nations are not allowed to opt out of them, even by treaty. Norms frequently described as jus cogens norms are the prohibitions (now contained in treaties) on genocide, slavery, and torture.

International Institutions

The United Nations was established at the end of World War II, pursuant to the United Nations Charter, a multilateral treaty. Today, 192 nations—essentially all the nations in the world—are parties to the Charter and thus members of the United Nations. The purposes of the United Nations, according to the Charter, are to maintain international peace and security; develop friendly relations among nations; achieve international cooperation in solving economic, social, cultural, and humanitarian problems, and in promoting respect for human rights and fundamental freedoms; and to be a center for harmonizing the actions of nations in attaining these ends.

The central deliberative organ of the United Nations is the General Assembly, which is made up of representatives of all the member nations. The General Assembly is an important forum for discussion and negotiation, but it does not have the power to make binding international law. Instead, it conducts studies and issues non-binding resolutions and recommendations reflecting the views of its members.

The principal enforcement arm of the United Nations is the Security Council. The Council is made up of representatives from fifteen nations. Five nations (China, France, Russia, the United Kingdom, and the United States) have permanent seats on the Council, as well as a veto power over the Council’s decisions. The other ten seats on the Council are filled by representatives of other nations elected by the General Assembly. Under the United Nations Charter, the Council is given ‘‘primary responsibility for the maintenance of international peace and security.’’ To address any threat to the peace, breach of the peace, or act of aggression, ‘‘the Council may call upon the members of the United Nations to apply’’ measures not involving the use of armed force, such as economic sanctions. If the Council determines that such non-military measures are inadequate, it may authorize ‘‘such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’’ The Charter obligates each member to ‘‘accept and carry out the decisions of the Security Council.’’

Another component of the United Nations system is the International Court of Justice (also sometimes referred to as the ‘‘World Court’’), which is based in The Hague, in the Netherlands. There are fifteen judges on the Court and they are elected to staggered nine-year terms. The Court has jurisdiction over two types of cases: contentious cases and cases seeking an advisory opinion. In contentious cases, only nations may appear as parties. In cases seeking advisory opinions, certain international organizations may also be parties. To be a party to a contentious case before the International Court of Justice, a nation must ordinarily be a party to the Statute of the International Court of Justice (a multilateral treaty) and have consented to the Court’s jurisdiction. Consent to jurisdiction can be given in several ways: a special agreement between the parties to submit their dispute to the Court; a jurisdictional clause in a treaty to which both nations are parties; or a general declaration accepting the compulsory jurisdiction of the Court.

In addition to the United Nations system, there are a variety of international institutions established to administer particular treaty regimes. A prominent example is the World Trade Organization (WTO), which was established in 1995 to administer the General Agreement on Tariffs and Trade and related agreements. The WTO has its own dispute settlement body, which adjudicates trade disputes between member nations. To enforce its decisions, the dispute settlement body can authorize the prevailing party to impose trade sanctions on the losing party. Another example is the International Criminal Court, based in The Hague, which has jurisdiction to try and punish certain international offenses, such as genocide.

Finally, there are regional international institutions, the most prominent of which is the European Union (EU). The EU currently is made up of 27 member countries. The EU has a number of constitutive organs, including a European Parliament, which is elected by individuals in the member countries; a Council of the European Union, which has representatives from the member governments; and a European Commission (an executive body). It also has a European Court of Justice, based in Luxembourg, which interprets and applies the treaty commitments of the Union. Although not part of the EU system, there is also a European Court of Human Rights, based in Strasbourg, France, which interprets and applies the European Convention for the Protection of Human Rights and Fundamental Freedoms (which has been ratified by over 40 countries). The decisions of both the Court of Justice and the Court of Human Rights are binding on the member countries.

Additional Notes and Highlights

• For more extensive discussions, see, for example:
  • Restatement (Third) of the Foreign Relations Law of the United States §§101-103 (1987)
  • David J. Bederman, International Law Frameworks (2001)
  • Mark W. Janis, International Law (5th ed. 2008)
  • Sean D. Murphy, Principles of International Law (2006).