Chapter 5: International Law

Basic Characteristics of International Law

International law is a branch of law, so it is first necessary to understand the concept of law.

A conflict of interests among people seems inevitable when they live together as a community. The rules of law are among the rules which establish community order. Unlike other kinds of rules, the rules of law are created by the highest political authority of the community and that authority enforces these rules. Law, then, can be described as those rules created and enforced by the highest political authority of a community to establish order by striking a balance amongst all the competing interests of members of the community.

Origins of International Law: Law itself arose in prehistoric times, emerging from custom, certainly as early as the Cuneiform Laws in 2350 BCE, the Code of Hammurabi in 1700 BCE, and the Laws of Moses, particularly the Ten Commandments. There were the law books of Manu in India, the Legalist School of China, and the extensive laws of the Aztecs and the Incas in the Americas.

As for international law, a system of law governing relations between and among states existed as back as in the times of Hittites, roughly 1650 BCE.

The development of Western codified international law is said to have started in Europe (for use by the European States) in the 16th and 17th centuries CE. The establishment of the United Nations in 1945 made of international law a global legal system.

International law has features familiar to the general concept of law but it offers peculiar characteristics in terms of creation and enforcement. This is basically because the international community has its own different and unique structure, one which is quite different even from those of a national community.

As a branch of law, international law consists of rules regulating the relations of states, international organizations and other international actors within the international community. The rules of international law are created by those who must apply or obey these rules. ese are basically states and to a limited extent other international actors. There is no supreme political authority over the states which can apply sanctions, as all states are accepted as legally equal entities. States themselves have the authority to apply sanctions provided by international law.

There are two kinds of international law: private and public. The former is concerned with the resolution of international disputes between individuals and companies, while the latter governs relations among states. It includes such things as claims to territory, the use of the sea, arms control, and human rights.

Relations between International law and Municipal Laws: Municipal Law is the national, or internal, law of a state, as opposed to international law. Naturally, there is a relationship between these two legal systems. However, there are two aspects to be considered:

• when rules of the two systems on the same issue conflict, this must be settled.
• as there are common issues and actors, can rules of one legal system, that is, those of international law, be directly applied in the realm of the other system?

The Dualist View stipulates that international law and municipal laws are two separate legal systems so that there cannot be a conflict of rules. As for the application, this perspective stipulates that to apply the rules in the other realm, a given rule must be transferred into the realm of the other legal system.

The Monist View differs and stipulates that international law and municipal law are parts of the same legal system, because there is only one legal realm in the world. In the case of a conflict of rules, some argue that international law is superior over the municipal rules, but others differ.

Conflict of laws and the example of the Turkish Constitution: Article 90 of the Turkish Constitution stipulates that:

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made about these agreements on the grounds that they are unconstitutional.

“In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms, and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail”.

Sources of International Law

Article 38 of the Statute of the International Court of Justice enumerates the sources where the rules of international law may be found. Sources of law, can be divided into two groups: binding (primary) and subsidiary sources. Binding sources are those that create rules while subsidiary ones help grasp the meaning of rules and interpret them.

Binding sources of international law

International Treaties: The 1969 Vienna Convention defines “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

There are law-making treaties and treaty contracts. Lawmaking treaties set the rules of international law in each field. Treaty contracts deal with a narrow area of practice between states and they resemble contracts in national legal systems. Trade agreements between states can be given as an example.

If a treaty is signed by two parties it is called a bilateral treaty, whereas a higher number of states can create a multilateral treaty.

Custom: Article 38 recognizes international custom as “evidence of a general practice accepted as law.” Today most of the rules of international law are codified in treaties and, therefore, custom has lost its significance. Customary international law is the second most important source of international law. It is formed by the common practices of states, which over time become accepted as legally binding. There are two elements of custom:

• The objective element (general practice): Practice should be constant and uniform. There is no duration requirement for practice to become law. However, the consistency and generality are required.
• The subjective (psychological element): The psychological element (opinio juris) of customary law provides that the rule in question should be regarded by states as being binding in law and states must obey such a rule since they believe they are under a legal obligation to act in the manner prescribed (opinio juris). Opinio juris: [Latin, from opinio juris sive necessitatis (whether the opinion of law is compulsory)] Opinio juris requires that custom should be regarded as state practice amounting to a legal obligation, which distinguishes it from mere usage.

General Principles of Law: According to the Statute of the International Court of Justice, the source for rules of international law can be found in what it terms “General Principles of Law.” Most Western jurists consider that these principles should be based on those underlying the legal systems of civilized states, especially those of Europe and the USA. These jurists also consider the general principles to be a law-creating source that is independent of either treaties or custom.

It is possible to find in international court decisions some general principles of law, some of which are good faith, fair trial, liability for fault.

Sunsidiary (Non-binding sources of international law

Judicial decisions: International courts are not obliged to follow previous decisions. In practice, international courts mostly examine previous decisions and refer to them in their judgements.

Doctrine: The term “the teachings of publicists” means the academic works of the learned writers and scholars of international law who have published monographs, edited books, and journal articles. This is also a subsidiary means, because there might always be different approaches to a special issue of international law among publicists and a consensus may not be reached all the time.

Other Possible Sources of International Law: There are an increasing number of references to the resolutions of international organizations. As expressed by the International Court of Justice, resolutions of the United Nations General Assembly can provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.

Although it is not strictly binding law, soft law cannot be completely disregarded in international law. Soft law, in fact, operates between law and politics. Some resolutions of international organizations and treaties that are not in force may be the examples of soft law.

Although its exact meaning and content is controversial, equity is also taken into consideration by international courts. Equity is generally used as a synonym for justice.

The Hierarchy of the Sources: Rules of international law may sometimes conflict with one another; therefore, it is important to find out which rules should prevail under such circumstances. In theory, there is no hierarchy among the three sources of law listed in Article 38 of the International Court of Justice Statute. In practice, however, international lawyers usually look first to any applicable treaty rules, then to custom, and last to general principles.

International Legal Personality

“Persons” are the subjects of law. In ordinary usage, the term ‘person’ means only individual human beings. However, there are “persons” in legal systems other than individuals. In general law, there are two types of “persons”: real (natural) and legal persons. Individuals are persons by birth. Legal personality, however, is granted by law. In the international law community “there is almost universal agreement that states are international persons.

State and International Legal Personality: The 1933 Montevideo Convention on the Rights and Duties of States declares in Article 1: The state as a person of international law should possess the following qualifications:

• a permanent population;
• a defined territory;
• government; and
• capacity to enter into relations with the other states.

A state must have a territory (land) over which state sovereignty is exercised. It includes the air space above the land.

Debates on the Right to Self-Determination: Selfdetermination is the principle in international law that peoples have the right to freely choose their international political status and the type of internal administration with no external compulsion or interference. Although the content of the right is questionable, after World War II nations which were under colonial domination were given the right to self- determination. Today, since international law provides significant rights to minorities, it could be argued that only nations which are under colonial domination, occupation, or racist regimes and administrations which gravely and systematically breach human rights have the right to self-determination, not minorities.

Types of States and Implications for International Law: In terms of independence, states are divided into two groups: fully independent states and partially independent states. The former has total independence from external interference. Partially independent states cannot carry out all their internal and external affairs on their own. Protected states (protectorates) and some states under trusteeship could be given as examples of this category.

There are also states with full powers and states with limited powers. Both are recognized as independent states, but the powers of some states are limited by international treaties.

Considering internal organization of countries, we may divide states into those with a unitary system and those with a united system. A unitary system is a system of political organization in which most, or all, of the governing power resides in a centralized government. However, in states with a united system, the central government and local governments share the governing power. Federations and confederations are the typical examples of states with a united system.

Recognition of States in International Law: Recognition means a willingness to deal with the new state as a member of the international community. Recognition, then, is about the decision of sovereign states to treat one another as sovereign entities. States are free to make their own decisions on whether to recognize the newly declared entity. In diplomacy, there is de facto recognition and de jure recognition.

There are two theories on recognition: According to constitutive theory an entity is not a state until it is recognized by other states. However, the declarative theory opposes this by saying recognition has no legal effect.

Recognition may be either express or implied. Express recognition involves a formal indication or declaration. Implied recognition takes place without directly expressing it. Some actions of a state that indicate its clear intention of recognition may result in implied recognition such as signing a bilateral treaty and initiating diplomatic relations with an entity.

International Organization and International Legal Personality: An international organization is an institution established by a treaty between two or more states. An international organization, whether nongovernmental or governmental, is generally considered a legal personality in international law.

State Responsibility

In any legal system, there is liability for failure to observe obligations imposed by its rules. Such liability is called “state responsibility” in international law. If a state violates a rule of customary international law or if it ignores an obligation of a treaty it has concluded, then it has committed a breach of international law.

State responsibility is regulated by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of 2001, though the draft has not become an international treaty so far.

There are two main theories concerning the basis of state responsibility:

• The objective (risk) responsibility theory claims that even without any fault a state is responsible for its breaches if there exists causal connection and attribution.
• On the other hand, the subjective (fault) responsibility theory rests on fault.

Circumstances Precluding Wrongfulness: Chapter V of the Draft Articles on the Responsibility of States sets out six circumstances precluding the wrongfulness of conduct: Consent, Self-defense, Countermeasures, Force Majeure, Distress, Necessity.

Implementation of State Responsibility: Restitution, Compensation, Satisfaction: An injured state which invokes the responsibility of another state gives notice of its claim to that state. The responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Full reparation for the injury caused by the internationally wrongful act takes the form of restitution, compensation and satisfaction, either singly or in combination.

Diplomatic Protection and Nationality: If a national of a state is injured by an act of another state, this may also mean the state of nationality is injured by that state indirectly. The national state of the injured alien may ‘exercise its right of diplomatic protection’, that is, may make a claim, through diplomatic channels, against the other state. Such claims are usually settled by negotiation.

Dispute Settlement

According to the United Nations Charter Article 2 (3), international disputes are required to be “settled by peaceful means in such a manner that international peace and security, and justice are not endangered”.

Also, according to Article 33 acceptable, peaceful means of dispute settlement between states are: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, any other peaceful means.

Basically, these methods of dispute settlement fall into two categories: diplomatic methods and binding legal methods.

Diplomatic methods , through which non-binding decisions are made, are negotiation, good offices and mediation, conciliation and fact-finding and inquiry.

Legal methods, on the other hand, are adjudication (the International Court of Justice), contentious cases, advisory opinion, and arbitration.