JoHo

Chapter 1. International law

Private international law and transnational law

The term ‘private international law’ refers to what is known as the ‘conflict of laws’. It covers the body of rules of a State’s domestic law which addresses legal issues with foreign elements; these rules determine which legal rules and jurisdiction are applicable.

A number of institutions are responsible for harmonisation of rules concerning conflict of laws. The Hague Conference on Private International Law, established in 1893 is tasked with the harmonisation of domestic rules on conflict of laws; UNIDROIT is responsible for the harmonisation of commercial domestic laws; UNCITRAL is tasked with harmonising international trade law.

The term ‘transnational law’ primarily connotes the study of the laws of multiple States, comparative law, supranational law, and (commercial) public international law. The study of transnational law gives the impression that the laws of States are becoming ever more similar; however, this is not the case.

The nature of international law

International law is generally known as ‘public international law’ (sometimes also as ‘general international law’), in contrast to the public international law described above. It was previously known as the ‘Law of Nations’. Public international law is the product of the actions of States instead of a single national legal system.

The history of public international law is generally said to have started with Hugo Grotius, a Dutch jurist and diplomat, who lived from 1583 to 1645. Another important event in the early history of Public International Law is the Peace of Westphalia in 1648, which concluded the end of the Thirty Years’ War and the period of feudalism in European history. It also marked the emergence of the modern nation state with a strong centralised government exercising control over its subjects. These new states were in need of rules to govern conduct between them. From the mid-seventeenth century these rules governing the relations between states evolved into contemporary international law.

Many students of international law question whether it is truly ‘law’, given that it has no enforcement mechanisms similar to those of domestic laws. Nevertheless, one can consider international law as being ‘law’, if one deems its strength as being derived from the acceptance of States to be bound by its rules – in contrast to whether these rules are directly enforced by an ‘international police’.

International law exists for the benefit of States – it allows their relationships to be governed by a body of shared principles and rules. Much of early international law addressed those issues which were in the interest of states, such as issues of immunity.

The importance of international law is also evident by the fact that many government departments have advisers on international law. Students of international law may find work in such departments, as well as in international courts and tribunals, at the UN or at NGOs dealing in legal issues.

The sources of international law

In contrast to domestic law, it is not always easy to find what international law says on a particular issue. The former derives its certainty from legislature, judgements, and a hierarchical system of courts – of which international law has none.

Nevertheless, the sources of international law are generally seen as being defined by Article 38(1) of the Statute of the International Court of Justice (ICJ). These sources are listed as:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

There is no formal hierarchy in these sources, but sources (a) and (b) are generally seen as more important than (c) and (d).

Art. 38(1)(a) refers to ‘international conventions’, meaning bilateral and multilateral treaties. A treaty only applies to those parties which are signatories to it; relations between a party and a non-party are governed by customary international law.

Customary international law is also known as ‘custom’. There are two elements to the establishment of custom. The first of these is the practice of States, which can take place over a very long or short amount of time. Practice can be deduced from a wide range of actions by a State; silence of a State on issues in which it has an interest can also be construed as practice by virtue of acquiescence. A practice can be prevented from becoming custom if it is inconsistent with other established rules of custom and if a State is a persistent objector to it becoming custom.

The second element that establishes custom is opinio juris, which is the recognition by a State that it acts in a certain way in one type of practice because it sees this manner of operating as legally binding under international law. Recognising what is and is not opinio juris is one of the most challenging aspects of practicing international law.

General principles of law are generally concepts of legal reasoning drawn from private law, such as good faith and estoppel. The obligation to act in good faith can be found in Art. 2(2) of the UN Charter and Art. 26 and 31(1) of the Vienna Convention of the Law of Treaties 1969. Estoppel concerns the obligation of a State in certain situations to act consistently with regards to previous acts. It also limits a State from denying responsibility for adverse consequences resulting from its formal declarations.

Even though the the judicial decisions of (both national and international) courts and tribunals are a subsidiary source of international law, they can greatly influence the development of the international legal system, particularly when there is evidence of a trend on a particular issue.

For a written work of the teachings of the most highly qualified publicists to contribute to the body of international law it is important that it the result of research into what the law says (lex lata), rather than what it should say (lex ferenda).

Certain State obligations are owed to all other States – in other words to all the world (erga omnes). Part of this body of norms includes jus cogens norms (see below) and certain human rights.

According to Art. 53 of the Vienna Convention on the Law of Treaties 1969, a jus cogens or peremptory norm is: “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”. There are a number of norms which are generally accepted to have attained the status of jus cogens: the prohibition on the use of force and aggression, genocide, slavery, racial discrimination, torture and crimes against humanity.

The term of ‘soft law’ is generally defined as those international instruments of which the makers did not intend to be a treaty, but which nevertheless provide guidelines for the promotion of certain norms which are deemed to be universally desirable. They are not legally binding. One can recognise ‘soft law’ instruments by a number of names, such as ‘Guidelines’, ‘Principles’, ‘Declarations’, ‘Codes of Practice’, ‘Recommendations’ or ‘Programmes’.

There also exist things such as rules of comity: these dictate certain rules of politeness, convenience and goodwill. They are not legally binding.

Domestic law

Domestic law is the applicable law within a State. It is sometimes also known by the terms of ‘national’, ‘internal’ or ‘municipal’ law.

International and domestic law interact with each other on a number of points. Thus many points of international law are aimed at eventually operating at the domestic level within the legal systems of States.

Subjects and objects of, and actors in, international law

One can distinguish between ‘subjects’ ‘objects’ and ‘actors’ in international law:

• Subjects: entities to which the rights and obligations of international law attach directly, such as states and international organisations

• Objects: those against which the rights and obligations accorded to them under international law can only be enforced by States. Examples include natural and legal persons.

National liberation movements (NLMs) are increasingly gaining the status of international subjecthood. Non-governmental organisations (NGOs), however, are not subjects of international law.