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International Law: an Overview

posted 11 Jan 2011, 18:16 by Jess Maher   [ updated 11 Jan 2011, 20:20 ]

Traditionally, international law consisted of rules and principles governing the relations and dealings of nations with each other, though recently, the scope of international law has been redefined to include relations between states and individuals, and relations between international organizations.  Public_international_law, concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations. In contrast, Private_international_law deals with controversies between private persons, natural or juridical, arising out of situations having significant relationship to more than one nation. In recent years the line between public and private international law have became increasingly uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law nave substantial significance for the international community of nations.

Domains of International Law

International Law includes the basic, classic concepts of law in national legal systems -- status, property, obligation, and tort (or delict). It also includes substantive law, procedure, process and remedies. International Law is rooted in acceptance by the nation states which constitute the system.  The following are major substantive fields of international law:

Sources of International Law

Customary law and conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives frominternational agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law.

General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.

Subjects of International Law

Traditionally, states were the main subject of international law.  Increasingly, individuals and non-state international organizations have also become subject to international regulation.  See Subjects of international law.

Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positiviststhat a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice.[1]

Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions" and the most highly qualified juristic writings "as subsidiary means for the determination of rules of law".

On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.

It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of theSecurity Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations.