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International Law

International Law is a shared legal order among members of the international society.
It involves norm-making, norm-ascertainment, and norm-enforcement.
It lacks a world legislator, centralized judicial system, and a world police force.
It is distinct from foreign law, the rules of foreign relations, and conflict of laws.
International Law primarily concerns inter-state relations.
States engage in international legal obligations to obtain rights and address issues of common interest requiring international cooperation.
International Law regulates the external sovereignty of States.
Many international legal rules also regulate the internal sovereignty of States obligating them to specific conduct within their jurisdictions.
International Law is implemented by officials within States.
International Law necessitates inter-state engagement in a communal manner.
International Society is constituted by States.
International Law consists of a set of rules which regulate the relations among the actors within the international society.
Ubi societas, ibi ius. Where there is a society, there is law
Ubi ius, ibi constitutio. Where there is law, there is a constitution.
International Law has no formal constitution. The 1945 UN Charter isn't comprehensive enough to be a constitution in and of itself.

Constitutive Elements of the International Society of States

States are the primary actors in the international society.
International law recognizes States as core entities for regulation.
The principle 'ubi societas, ibi ius' asserts the connection between society and law.
States and other entities have rights and responsibilities outlined.
Ubi ius, ibi constitutio suggests that law entails a social and political process.
No single international constitution; fundamental principles date to the 17th century.
The 1648 Peace of Westphalia established States as principal units within the international system.

Evolution of International Law

International Law began with the formal equality and reciprocal independence of states, with 1648's Peace of Westphalia as the starting point for what can be called modern international law.
The concept of sovereign equality among states underpins the structure of the international system.
The 17th century European context saw anarchy in international political relations.
Sovereignty implies a low degree of international institutionalization, as in a lack of centralized power for norm-creation, judicial application, and enforcement of any regulations
Development of international law has witnessed attempts to limit state sovereignty, which has seen the increase of international organizations.
International organizations have influenced and partly regulated the rights and duties of states and non-state actors.
International law has led to the strengthening of the international community by legally protecting fundamental, indivisible interests of this international community
The development of international law in several areas is driven by states and in turn limits the behavior or capacity of particular states.

Subjects of International Law: States

The Montevideo Convention (1933) provides qualifications for states (permanent population, defined territory, government, and capacity to enter into relations with other states – that is, independence).
States are the primary subjects of international law; sovereignty and its features are attributed to states
Pre-conditions for being considered a state under international law are outlined by the Montevideo Convention.
Key features necessary for being recognized as a state in international law are defined by the Badinter Commission, the Montevideo Convention.
Entities are entities are states once conditions are met(effective and independent governmental exercise)
States have rights and duties within their own territory and vis-à-vis other states and international law.

Subjects of International Law: Peoples

A people is not a subject of international law; however, the notion of people is relevant for the principle of self-determination.
International law includes the principle of self-determination, which addresses the rights and duties of peoples.
The notion of people differs from those of minorities or indigenous peoples.
Key issues with applying the principle of self-determination: colonies, occupying powers, and racial segmentation
The UN General Assembly contributed greatly to the principle of peoples' self-determination under international law, which arose during decolonization, but doesn't apply retroactively to events.
The 1960 UNGA Declaration on the Granting of Independence to Colonial Countries and Peoples asserts the rights of colonial peoples to self-determination.
This principle is reflected in various international legal sources, such as the Charter of the United Nations.
The principle of self-determination has developed over time and has been addressed in several ICJ decisions, such as cases concerning Namibia, Western Sahara, and East Timor.

Subjects of International Law: International Organizations

International Organizations (IOs) are subjects of international law, not directly linked with a territory.
IOs express the will of States to cooperate on common interests by creating a stable organization.
Adherence to an IO such as an existing treaty is voluntary.
IOs are derivative entities of the international society that originate from states, but have their own autonomy.
IOs have limited, functional capacity regarding their actions that are bounded by their aims in international law and the powers granted within their statutes.
Various forms of inter-state cooperation exist.
IOs have a defined structure incorporating principal and subsidiary organs.
IOs have limited and restricted powers.
IOs express their will and autonomy within international relations.
IOs function by acting within a specific institutional frame, which allows them to fulfill certain functions.

Subjects of International Law: Insurgents

Insurgents can be subjects of international law in limited and temporary instances.
A recognized government is necessary to define who should be considered an insurgent, though an established government's capacity to maintain order is subject to international law.
Insurgents only have limited rights and obligations.
The international legal norms which apply to the insurgents are those regarding customary rules on treaty conclusion, treatment of aliens, foreign state organs' immunities, international humanitarian law in cases of non-international armed conflict, and international criminal responsibility.
When an insurgence fails, the established state is responsible for the reparation of internationally wrongful acts, provided it has not attempted to avoid this act.
When an insurgence succeeds, the new government is responsible for compensation for internationally wrongful acts committed by all parties involved.
Outside of these limited conditions, States must follow the established government's authorization to intervene for the sake of maintaining interstate order

Subjects of International Law: Individuals

Individuals were originally considered as State "attachments"
The mid 20th century saw a marked shift in international law recognizing more rights to individuals.
International customary law has defined duties prohibiting the commission of international crimes and pertaining to fundamental human rights, including bodily integrity and human dignity
International treaties now recognize individual rights
There is an emerging understanding of individuals with partial international legal subjectivity.

International Law Sources: Introduction and Customary Norms

The source of International Law comes from state consensus on defining sources of law, not a centralized legislator.
A main distinction between primary and secondary rules under international law concerning international legal order exists in the application of those rules.
Many parts of customary law are codified in written treaties, which are, in essence, agreements among states
Customary law, however, is formed apart from a particular treaty but may take precedence.
A treaty that stands in derogation of customary law doesn't cancel the law; it governs the relations among those states who opt in.
However, some customs can't be broken by any treaty and are considered 'jus cogens norms;' these are rules of fundamental international law.
'Erga omnes' obligations are a category of customary norms protecting interests of the international community.
These obligations are owed to all states as a whole, rather than to one specific state.
The principle of state consent to be bound is necessary whenever customary law or treaty-made law forms a new standard in international law
States that didn't actively engage to change those conditions remain bound to the norm even if they did not directly participate in forming it.

International Law Sources: Treaties (I)

Treaties under international law operate somewhat similarly to contracts under private law.
The fundamental aspect of a treaty lies in the exchange of consent between multiple parties/states (states/IOs). This may encompass a variety of objectives/outcomes.
Customary law codified in written treaties (the 1969 Vienna Convention on the Law of Treaties)
The Vienna Convention deals with many aspects of treaty law but does not encompass all international legal principles.

International Law Sources: Treaties (II)

The effects of treaties on non-parties are limited.
A treaty only affects states that consented to be bound by its terms and conditions.
Interpretation of treaties relies on international rules that are consistent under international law (the 1969 Vienna Convention on the Law of Treaties)
Treaties are valid unless there is a fundamental defect.
Some acts are considered void altogether. Others are subject to challenge.
Treaties may terminate or be suspended based on a variety of justifications, including breach of the treaty, an agreed withdrawal from the terms and conditions, or a fundamental change of circumstances.

Contents of IL: States' Immunity and Diplomatic Immunities

A state is immune in other states' courts.
Restrictive immunity regarding a State's acts are dependent on whether or not such acts are considered 'acta jure imperii' (sovereign acts) or 'acta jure gestionis' (commercial acts).
The 2012 ICJ judgement on Jurisdictional Immunities of the State (Germany v. Italy) affirmed a customary norm of State immunity, particularly for 'acta jure imperii' (acts of state sovereignty).
Diplomatic immunities are corollaries to state immunity. States can choose to waive these immunities on a case-by-case basis.
The practice of diplomatic immunity is meant to prevent an interference with inter-state diplomatic relations, and to respect a state's sovereignty.
Laws governing diplomatic immunities are based on the principle of state consent.
A wide array of categories of persons are guaranteed these legal immunities, including heads of state/government, diplomatic staff and their immediate family, and technical and administrative staff.

Sources of International Law, from the perspective of Domestic Law

A. Theories and Approaches

Monism: International law (IL) and domestic law (DL) form a unified legal framework. IL is automatically integrated into DL; thus, if there is a conflict, IL prevails.
Dualism: IL and DL are separate legal systems. IL gains effect through a separate act of DL (typically legislation). Thus, if there is a conflict, DL prevails, unless there is expressed state consent to an otherwise-separate legal principle of international law. B. Standing
States adopt a treaty; there must be conformity between DL and IL to maintain a legitimate/valid treaty.
The state's constitution often defines priorities for considering the supremacy of a treaty, meaning that treaties often are subsumed under the domestic legal order through a separate act of that state's legislature.

Resolution of International Disputes

An international dispute arises when there is disagreement regarding a legal point or a matter of fact between two or more parties/states.
The UN Charter establishes an obligation for states to settle disputes by peaceful means, such as negotiation, good offices, mediation, conciliation or arbitration.
States or their representative bodies are obligated to resolve disputes by peaceful means to avoid threatening the peace & stability of the international system.

The Use of Force

Classical international law saw war as a means of resolving disputes, which was considered lawful
Beginning in the post-WWI era, there has been a progressive process of changing the traditional understanding of war as a permitted resolution of disputes under international law
A key element of this change is the concept of prohibited force, particularly armed force.
An armed attack by one state against another state may be used as a justification for self-defense by the other state or states.
The UN Charter contains the foundational text prohibiting the threat or use of force against any state's territorial integrity.
The UN Charter also contains exceptions for the use of force permitted: individual or collective self-defense; under Chapter VII of the UN Charter, which allows for the use of force for the maintenance of international peace and security; and under the rules concerning the law of the sea.

Legal Status of Non-State Actors

Non-state actors, whether private individuals or groups such as terrorist organizations or insurgent/rebel armies, are not directly bound by the principle forbidding the threat/use of force.
There is no international principle that forbids non-state actors from wielding force.
The only situation when a non-state actor's actions regarding the use of force is legally relevant regarding international responsibility is when the state is deemed responsible for the actions of that non-state actor.