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Public international lawFrom Wikipedia, the free encyclopedia"Law of Nations" redirects here. For the 18th-century political treatise, see The Law of Nations.

Public international law concerns the structure and conduct of soerei!n states analo!ousentities, such as the #oly $ee and inter!oernmental or!ani%ations. To a lesser de!ree,international law also may affect multinational corporations and indiiduals, an impact

increasin!ly eolin! &eyond domestic le!al interpretation and enforcement. 'u&lic international

law has increased in use and importance astly oer the twentieth century, due to the increase in

!lo&al trade, enironmental deterioration on a worldwide scale, awareness of  human ri!hts iolations, rapid and ast increases in international transportation and a &oom in !lo&al

communications.

The field of study com&ines two main &ranches( the law of nations ) jus gentium* and

international a!reements and conentions ) jus inter gentes*.

'u&lic international law is usually distin!uished from " priate international law", which concerns

the resolution of conflict of laws. +n its most !eneral sense, international law "consists of rules

and principles of !eneral application dealin! with the conduct of states and of inter!oernmentalor!ani%ations and with their relations inter se, as well as with some of their relations with

 persons, whether natural or uridical."1

Contents

• 1 #istory

•

/ +nternational relations o /.1 Treaties

o /./ $tatehood and responsi&ility

o /.0 Territory and the sea

o /. +nternational or!anisations

• 0 $ocial and economic policy 

o 0.1 #uman ri!hts

o 0./ La&our law

o 0.0 2eelopment and finance

o 0. 3nironmental law

o 0.4 Trade

• 5onflict and force 

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o .1 War and armed conflict

o ./ #umanitarian law

o .0 +nternational criminal law

• 4 5ourts and enforcement 

o 4.1 2omestic enforcement

o 4./ +nternational &odies

• 6 +nternational le!al theory

• 7 $ee also

• 8 Notes

• 9eferences

•

1: 3;ternal links

History

<ain article( #istory of pu&lic international law

=e!innin! with the 'eace of Westphalia in 168, the 17th, 18th and 1th centuries saw the

!rowth of the concept of the soerei!n "nation-state", which consisted of a nation controlled &y a

centrali%ed system of !oernment. The concept of nationalism &ecame increasin!ly important as people &e!an to see themseles as citi%ens of a particular nation with a distinct national identity.

>ntil the mid-1th century, relations &etween nation-states were dictated &y treaty, a!reements to

 &ehae in a certain way towards another state, unenforcea&le e;cept &y force, and not &indin!e;cept as matters of honor and faithfulness. =ut treaties alone &ecame increasin!ly toothless andwars &ecame increasin!ly destructie, most markedly towards ciilians, and ciili%ed peoples

decried their horrors, leadin! to calls for re!ulation of the acts of states, especially in times of

war.

'erhaps the first instrument of modern pu&lic international law was the Lie&er 5ode, passed in

1860 &y the 5on!ress of the >nited $tates, to !oern the conduct of >$ forces durin! the >nited

$tates 5iil War  and considered to &e the first written recitation of the rules and articles of war,

adhered to &y all ciili%ed nations, the precursor of pu&lic international law. 'art of the 5odefollows(

"<ilitary necessity, as understood &y modern ciili%ed nations, consists in the necessity of those

measures which are indispensa&le for securin! the ends of the war, and which are lawful

accordin! to the modern law and usa!es of war. <ilitary necessity admits of all direct destructionof life or lim& of armed enemies, and of other persons whose destruction is incidentally

unaoida&le in the armed contests of the war it allows of the capturin! of eery armed enemy,

and eery enemy of importance to the hostile !oernment, or of peculiar dan!er to the captor itallows of all destruction of property, and o&struction of the ways and channels of traffic, trael,

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or communication, and of all withholdin! of sustenance or means of life from the enemy of the

appropriation of whateer an enemy?s country affords necessary for the su&sistence and safety of

the @rmy, and of such deception as does not inole the &reakin! of !ood faith either positiely pled!ed, re!ardin! a!reements entered into durin! the war, or supposed &y the modern law of

war to e;ist. )...=ut...* <en who take up arms a!ainst one another in pu&lic war do not cease on

this account to &e moral &ein!s, responsi&le to one another and to Aod. <ilitary necessity doesnot admit of crueltyBthat is, the infliction of sufferin! for the sake of sufferin! or for reen!e,

nor of maimin! or woundin! e;cept in fi!ht, nor of torture to e;tort confessions. +t does not

admit of the use of poison in any way, nor of the wanton deastation of a district. +t admits ofdeception, &ut disclaims acts of perfidy and, in !eneral, military necessity does not include any

act of hostility which makes the return to peace unnecessarily difficult."

This first statement of the preiously uncodified rules and articles of war led to the first

 prosecution for war crimesBin the case of >nited $tates prisoners of war held in cruel anddepraed conditions at @ndersonille, Aeor!ia, in which the 5onfederate commandant of that

camp was tried and han!ed, the only 5onfederate soldier to &e punished &y death in the

aftermath of the entire 5iil War .

+n the years that followed, other states su&scri&ed to limitations of their conduct, and numerousother treaties and &odies were created to re!ulate the conduct of states towards one another in

terms of these treaties, includin!, &ut not limited to, the 'ermanent 5ourt of @r&itration in 18

the #a!ue and Aenea 5onentions, the first of which was passed in 186 the +nternational5ourt of Custice in 1/1 the Aenocide 5onention and the +nternational 5riminal 5ourt, in the

late 1:s. =ecause international law is a relatiely new area of law its deelopment and

 propriety in applica&le areas are often su&ect to dispute.

International relations

<ain articles( $ources of international law and List of +5C cases

>nder article 08 of the $tatute of the +nternational 5ourt of Custice, pu&lic international law has

three principal sources( international treaties, custom, and !eneral principles of law. +n addition,

 udicial decisions and teachin!s may &e applied as "su&sidiary means for the determination ofrules of law".

+nternational treaty law comprises o&li!ations states e;pressly and oluntarily accept &etween

themseles in treaties. 5ustomary international law is deried from the consistent practice of

$tates accompanied &y opinio juris, i.e. the coniction of $tates that the consistent practice is

reDuired &y a le!al o&li!ation. Cud!ments of international tri&unals as well as scholarly workshae traditionally &een looked to as persuasie sources for custom in addition to direct eidence

of state &ehaior. @ttempts to codify customary international law picked up momentum after the$econd World War  with the formation of the +nternational Law 5ommission )+L5*, under the

ae!is of the >nited Nations. 5odified customary law is made the &indin! interpretation of the

underlyin! custom &y a!reement throu!h treaty. For states not party to such treaties, the work ofthe +L5 may still &e accepted as custom applyin! to those states. Aeneral principles of law are

those commonly reco!ni%ed &y the maor le!al systems of the world. 5ertain norms of

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international law achiee the &indin! force of   peremptory norms ) jus cogens* as to include all

states with no permissi&le dero!ations.

• Colombia v Perú 14: +5C 6, reco!nisin! custom as a source of international law, &ut a

 practice of !iin! asylum was not part of it.

•

 Belgium v Spain 17: +5C 1, only the state where a corporation is incorporated )notwhere its maor shareholders reside* has standin! to &rin! an action for dama!es for

economic loss.

Treaties

Where there are disputes a&out the e;act meanin! and application of national laws, it is the

responsi&ility of the courts to decide what the law means. +n international law interpretation iswithin the domain of the prota!onists, &ut may also &e conferred on udicial &odies such as the

+nternational 5ourt of Custice, &y the terms of the treaties or &y consent of the parties. +t is

!enerally the responsi&ility of states to interpret the law for themseles, &ut the processes of

diplomacy and aaila&ility of supra-national udicial or!ans operate routinely to proideassistance to that end. +nsofar as treaties are concerned, the Eienna 5onention on the Law of

Treaties writes on the topic of interpretation that(

"@ treaty shall &e interpreted in !ood faith in accordance with the ordinary meanin! to &e!ien to the terms of the treaty in their conte;t and in the li!ht of its o&ect and purpose."

)article 01)1**

This is actually a compromise &etween three different theories of interpretation(

• The te;tual approach, a restrictie interpretation, which &ases itself on the "ordinary

meanin!" of the te;t that approach assi!ns considera&le wei!ht to the actual te;t.• The su&ectie approach, which takes into consideration i. the idea &ehind the treaty, ii.

treaties "in their conte;t", and iii. what the writers intended when they wrote the te;t.

• @ third approach, which &ases itself on interpretation "in the li!ht of its o&ect and

 purpose", i.e. the interpretation that &est suits the !oal of the treaty, also called "effectie

interpretation".

These are !eneral rules of interpretation specific rules mi!ht e;ist in specific areas of

international law.

• Greece v United Kingdom 14/ +5C 1, +5C had no urisdiction to hear a dispute &etween

the > !oernment and a priate Areek &usinessman under the terms of a treaty.

• United Kingdom v Iran 14/ +5C /, the +5C did not hae urisdiction for a dispute oer

the @n!lo-+ranian Gil 5o. &ein! nationalised.

• Oil Platforms case (Islamic epublic of Iran v United States of !merica" /::0 +5C ,

reected dispute oer dama!e to ships which hit a mine.

Statehood and responsibility

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$ee also( <onism and dualism in international law

'u&lic international law esta&lishes the framework and the criteria for identifyin! states as the

 principal actors in the international le!al system. @s the e;istence of a state presupposes controland urisdiction oer territory, international law deals with the acDuisition of territory, state

immunity and the le!al responsi&ility of states in their conduct with each other. +nternational lawis similarly concerned with the treatment of indiiduals within state &oundaries. There is thus a

comprehensie re!ime dealin! with !roup ri!hts, the treatment of aliens, the ri!hts of refu!ees,international crimes, nationality pro&lems, and human ri!hts !enerally. +t further includes the

important functions of the maintenance of international peace and security, arms control, the

 pacific settlement of disputes and the re!ulation of the use of force in international relations.3en when the law is not a&le to stop the out&reak of war, it has deeloped principles to !oern

the conduct of hostilities and the treatment of   prisoners. +nternational law is also used to !oern

issues relatin! to the !lo&al enironment, the !lo&al commons such as international waters andouter space, !lo&al communications, and world trade.

+n theory all states are soerei!n and eDual. @s a result of the notion of soerei!nty, the alue andauthority of international law is dependent upon the oluntary participation of states in its

formulation, o&serance, and enforcement. @lthou!h there may &e e;ceptions, it is thou!ht &ymany international academics that most states enter into le!al commitments with other states out

of enli!htened self-interest rather than adherence to a &ody of law that is hi!her than their own.

@s 2. W. Arei! notes, "international law cannot e;ist in isolation from the political factorsoperatin! in the sphere of international relations"./

Traditionally, soerei!n states and the #oly $ee were the sole su&ects of international law. With

the proliferation of international or!ani%ations oer the last century, they hae in some cases

 &een reco!ni%ed as releant parties as well. 9ecent interpretations of international human ri!hts

law, international humanitarian law, and international trade law )e.!., North @merican Free Trade@!reement )N@FT@* 5hapter 11 actions* hae &een inclusie of corporations, and een of

certain indiiduals.

The conflict &etween international law and national soerei!nty is su&ect to i!orous de&ate anddispute in academia, diplomacy, and politics. 5ertainly, there is a !rowin! trend toward ud!in! a

state?s domestic actions in the li!ht of international law and standards. Numerous people now

iew the nation-state as the primary unit of international affairs, and &eliee that only states maychoose to oluntarily enter into commitments under international law, and that they hae the

ri!ht to follow their own counsel when it comes to interpretation of their commitments. 5ertain

scholars#$o% and political leaders feel that these modern deelopments endan!er nation states &y

takin! power away from state !oernments and cedin! it to international &odies such as the >.N.and the World =ank, ar!ue that international law has eoled to a point where it e;ists separately

from the mere consent of states, and discern a le!islatie and udicial process to international law

that parallels such processes within domestic law. This especially occurs when states iolate ordeiate from the e;pected standards of conduct adhered to &y all ciili%ed nations.

@ num&er of states place emphasis on the principle of territorial soerei!nty, thus seein! states as

hain! free rein oer their internal affairs. Gther states oppose this iew. Gne !roup of opponents

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of this point of iew, includin! many 3uropean nations, maintain that all ciili%ed nations hae

certain norms of conduct e;pected of them, includin! the prohi&ition of  !enocide, slaery and

the slae trade, wars of a!!ression, torture, and piracy, and that iolation of these uniersalnorms represents a crime, not only a!ainst the indiidual ictims, &ut a!ainst humanity as a

whole. $tates and indiiduals who su&scri&e to this iew opine that, in the case of the indiidual

responsi&le for iolation of international law, he "is &ecome, like the pirate and the slae trader   &efore him, hostis humani !eneris, an enemy of all mankind",0 and thus su&ect to prosecution

in a fair trial &efore any fundamentally ust tri&unal, throu!h the e;ercise of uniersal

 urisdiction.

Thou!h the 3uropean democracies tend to support &road, uniersalistic interpretations ofinternational law, many other democracies hae differin! iews on international law. $eeral

democracies, includin! +ndia, +srael and the >nited $tates, take a fle;i&le, eclectic approach,

reco!ni%in! aspects of pu&lic international law such as territorial ri!hts as uniersal, re!ardin!other aspects as arisin! from treaty or custom, and iewin! certain aspects as not &ein! su&ects

of pu&lic international law at all. 2emocracies in the deelopin! world, due to their past colonial

histories, often insist on non-interference in their internal affairs, particularly re!ardin! humanri!hts standards or their peculiar institutions, &ut often stron!ly support international law at the

 &ilateral and multilateral leels, such as in the >nited Nations, and especially re!ardin! the use

of force, disarmament o&li!ations, and the terms of the >N 5harter.

• Case Concerning United States &iplomatic and Consular Staff in 'e$ran 18: +5C 1

•  &emocratic epublic of t$e Congo v Belgium /::/ +5C 1

Territory and the sea

<ain article( Law of the $ea

•

Territorial dispute•  ib)a v C$ad  1 +5C 1

• United Kingdom v *or#a) 141 +5C 0, the Fisheries case, concernin! the limits of

 Norway?s urisdiction oer nei!h&ourin! waters

•  Peru v C$ile )/:1* dispute oer international waters.

•  Ba+assi case /::/ +5C /, &etween Ni!eria and 5ameroon

•  Bur+ina ,aso-*iger frontier dispute case )/:10*

• >nited Nations 5onention on the Law of the $ea

• Corfu C$annel Case 1 +5C 1, > sues @l&ania for dama!e to ships in international

waters. First +5C decision.

•  ,rance v United Kingdom 140 +5C 0

• German) v &enmar+ and t$e *et$erlands 16 +5C 1, successful claim for a !reater

share of the North $ea continental shelf &y Aermany. The +5C held that the matter ou!htto &e settled, not accordin! to strict le!al rules, &ut throu!h applyin! eDuita&le principles.

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• Case concerning maritime delimitation in t$e Blac+ Sea (omania v U+raine"  /:: +5C

0

International organisations

<ain articles( +nter!oernmental or!ani%ation and Alo&al administratie law• >nited Nations

• World Trade Gr!anisation

• +nternational La&our Gr!anisation

•  N@TG

• 3uropean >nion

• A7 and A/:

Social and economic policy$ee also( 5onflicts of laws

•  *et$erlands v S#eden 148 +5C 8, $weden had urisdiction oer its !uardianship policy,

meanin! that its laws oerrode a conflictin! !uardianship order of the Netherlands.

•  iec$tenstein v Guatemala 144 +5C 1, the reco!nition of <r Notte&ohm?s nationality,

connected to diplomatic protection.

•  Ital) v ,rance. United Kingdom and United States 14 +5C /

Human rights

 Human rights portal 

<ain articles( +nternational human ri!hts law and #uman ri!hts

• >niersal 2eclaration of #uman 9i!hts

• Croatia/Serbia genocide case )/:1* on!oin! claims oer !enocide.

•  Bosnia and 0er1egovina v Serbia and 2ontenegro /::7 +5C /

Labour law

[show]

• v• t

• e

International labour sources

<ain articles( +nternational la&our law and La&our law

• +nternational La&our Gr!ani%ation

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• +LG 5onentions

• 2eclaration of 'hiladelphia of 1

• 2eclaration on Fundamental 'rinciples and 9i!hts at Work  of 18

• >nited Nations 5onention on the 'rotection of the 9i!hts of @ll <i!rant Workers and

<em&ers of Their Families

• the 5onention on the 3limination of @ll Forms of 9acial 2iscrimination 164

• 5onention on the 3limination of @ll Forms of 2iscrimination @!ainst Women 181*4

• the 5onention on the 9i!hts of 'ersons with 2isa&ilities /::86

Development and inance

<ain articles( +nternational deelopment, World =ank  and +nternational <onetary Fund

• =retton Woods 5onference

• World =ank 

• +nternational <onetary Fund

!nvironmental law

<ain articles( +nternational enironmental law and 3nironmental law

• yoto 'rotocol

Trade

<ain article( World Trade Gr!ani%ation

• World Trade Gr!ani%ation

Conlict and orce

"ar and armed conlict

<ain article( Law of war 

•  *icaragua v3 United States 186 +5C 1

•  International Court of 4ustice advisor) opinion on t$e egalit) of t$e '$reat or Use of

 *uclear 5eapons

Humanitarian law

<ain articles( +nternational humanitarian law and Aenea conentions

• First Aenea 5onention of 1, @melioration of the 5ondition of the Wounded and

$ick in @rmed Forces in the Field, )first adopted in 186*

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• $econd Aenea 5onention of 1, @melioration of the 5ondition of Wounded, $ick

and $hipwrecked <em&ers of @rmed Forces at $ea )first adopted in 1:6*

• Third Aenea 5onention of 1, Treatment of 'risoners of War, adopted in 1/,

followin! from the #a!ue 5onentions of 18 and 1:7.

• Fourth Aenea 5onention of 1, 'rotection of 5iilian 'ersons in Time of War.

International criminal law

<ain articles( +nternational criminal law and +nternational 5riminal 5ourt

This section reDuires e;pansion. (October 6786"

Courts and enorcement

<ain article( +nternational 5ourt of Custice

+t is pro&a&ly the case that almost all nations o&sere almost all principles of international law

and almost all of their o&li!ations almost all the time.

 B Louis #enkin7

$ince international law has no esta&lished compulsory  udicial system for the settlement of

disputes or a coercie penal system, it is not as strai!htforward as mana!in! &reaches within adomestic le!al system. #oweer, there are means &y which &reaches are &rou!ht to the attention

of the international community and some means for resolution. For e;ample, there are udicial or 

Duasi-udicial tri&unals in international law in certain areas such as trade and human ri!hts. The

formation of the >nited Nations, for e;ample, created a means for the world community toenforce international law upon mem&ers that iolate its charter throu!h the $ecurity 5ouncil.

$ince international law e;ists in a le!al enironment without an oerarchin! "soerei!n" )i.e., an

e;ternal power a&le and willin! to compel compliance with international norms*, "enforcement"of international law is ery different from in the domestic conte;t. +n many cases, enforcement

takes on 5oasian characteristics, where the norm is self-enforcin!. +n other cases, defection from

the norm can pose a real risk, particularly if the international enironment is chan!in!. When thishappens, and if enou!h states )or enou!h powerful states* continually i!nore a particular aspect

of international law, the norm may actually chan!e accordin! to concepts of customary

international law. For e;ample, prior to World War +, unrestricted su&marine warfare was

considered a iolation of international law and ostensi&ly the casus &elli for the >nited $tates?declaration of war a!ainst Aermany. =y World War ++, howeer, the practice was so widespread

that durin! the Nurem&er! trials, the char!es a!ainst Aerman @dmiral arl 2Hnit% for orderin!

unrestricted su&marine warfare were dropped, notwithstandin! that the actiity constituted aclear iolation of the $econd London Naal Treaty of 106.

Domestic enorcement

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@part from a state?s natural inclination to uphold certain norms, the force of international law

comes from the pressure that states put upon one another to &ehae consistently and to honor

their o&li!ations. @s with any system of law, many iolations of international law o&li!ations areoerlooked. +f addressed, it may &e throu!h diplomacy and the conseDuences upon an offendin!

state?s reputation, su&mission to international udicial determination,8 ar&itration,1: 

sanctions11

 or force includin! war .1/

 Thou!h iolations may &e common in fact, states try toaoid the appearance of hain! disre!arded international o&li!ations. $tates may also unilaterally

adopt sanctions a!ainst one another such as the seerance of economic or diplomatic ties, or

throu!h reciprocal action. +n some cases, domestic courts may render ud!ment a!ainst a forei!nstate )the realm of priate international law* for an inury, thou!h this is a complicated area of

law where international law intersects with domestic law.

+t is implicit in the Westphalian system of nation-states, and e;plicitly reco!ni%ed under @rticle

41 of the 5harter of the >nited Nations, that all states hae the inherent ri!ht to indiidual andcollectie self-defense if an armed attack occurs a!ainst them. @rticle 41 of the >N 5harter

!uarantees the ri!ht of states to defend themseles until )and unless* the $ecurity 5ouncil takes

measures to keep the peace.

International bodies

<ain article( +nternational le!al system

Further information( >nited Nations Aeneral @ssem&ly 9esolution 077

Eiolations of the >N 5harter &y mem&ers of the >nited Nations may &e raised &y the a!!rieedstate in the Aeneral @ssem&ly for de&ate. The Aeneral @ssem&ly cannot make &indin!

resolutions, only ?recommendations?, &ut throu!h its adoption of the ">nitin! for 'eace"

resolution )@I93$I077 @*, of 0 Noem&er 14:, the @ssem&ly declared that it has the power to

authori%e the use of force, under the terms of the >N 5harter, in cases of &reaches of the peace or acts of a!!ression, proided that the $ecurity 5ouncil, owin! to the ne!atie ote of a permanent

mem&er, fails to act to address the situation. The @ssem&ly also declared, &y its adoption ofresolution 077 @, that it could call for other collectie measuresBsuch as economic and

diplomatic sanctionsBin situations constitutin! the milder "threat to the 'eace".

The >nitin! for 'eace resolution was initiated &y the >nited $tates in 14:, shortly after the

out&reak of the orean War , as a means of circumentin! possi&le future $oiet etoes in the$ecurity 5ouncil. The le!al si!nificance of the resolution is unclear, !ien that the Aeneral

@ssem&ly cannot issue &indin! resolutions. #oweer, it was neer ar!ued &y the "Coint $een-

'owers" that put forward the draft resolution,10 durin! the correspondin! discussions, that it in

any way afforded the @ssem&ly new powers. +nstead, they ar!ued that the resolution simplydeclared what the @ssem&ly?s powers already were, accordin! to the >N 5harter, in the case of a

dead-locked $ecurity 5ouncil.1141617 The $oiet >nion was the only permanent mem&er of

the $ecurity 5ouncil to ote a!ainst the 5harter interpretations that were made law &y the@ssem&ly?s adoption of resolution 077 @.

@lle!ed iolations of the 5harter can also &e raised &y states in the $ecurity 5ouncil. The

$ecurity 5ouncil could su&seDuently pass resolutions under 5hapter E+ of the >N 5harter to

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recommend the "'acific 9esolution of 2isputes." $uch resolutions are not &indin! under

international law, thou!h they usually are e;pressie of the 5ouncil?s conictions. +n rare cases,

the $ecurity 5ouncil can adopt resolutions under 5hapter E++ of the >N 5harter, related to"threats to 'eace, =reaches of the 'eace and @cts of @!!ression," which are le!ally &indin!

under international law, and can &e followed up with economic sanctions, military action, and

similar uses of force throu!h the auspices of the >nited Nations.

+t has &een ar!ued that resolutions passed outside of 5hapter E++ can also &e &indin! the le!al &asis for that is the 5ouncil?s &road powers under @rticle /)/*, which states that "in dischar!in!

these duties )e;ercise of primary responsi&ility in international peace and security*, it shall act in

accordance with the 'urposes and 'rinciples of the >nited Nations". The mandatory nature ofsuch resolutions was upheld &y the +nternational 5ourt of Custice )+5C* in its adisory opinion on

 Nami&ia. The &indin! nature of such resolutions can &e deduced from an interpretation of their

lan!ua!e and intent.

$tates can also, upon mutual consent, su&mit disputes for ar&itration &y the +nternational 5ourt of 

Custice, located in The #a!ue,  Netherlands. The ud!ments !ien &y the 5ourt in these cases are &indin!, althou!h it possesses no means to enforce its rulin!s. The 5ourt may !ie an adisory

opinion on any le!al Duestion at the reDuest of whateer &ody may &e authori%ed &y or inaccordance with the 5harter of the >nited Nations to make such a reDuest. $ome of the adisory

cases &rou!ht &efore the court hae &een controersial with respect to the court?s competence and

 urisdiction.

Gften enormously complicated matters, +5C cases )of which there hae &een less than 14: sincethe court was created from the 'ermanent 5ourt of +nternational Custice in 14* can stretch on

for years and !enerally inole thousands of pa!es of pleadin!s, eidence, and the world?s

leadin! specialist pu&lic international lawyers. @s of Cune /::, there are 14 cases pendin! at the

+5C. 2ecisions made throu!h other means of ar&itration may &e &indin! or non-&indin!dependin! on the nature of the ar&itration a!reement, whereas decisions resultin! from

contentious cases ar!ued &efore the +5C are always &indin! on the inoled states.

Thou!h states )or increasin!ly, international or!ani%ations* are usually the only ones withstandin! to address a iolation of international law, some treaties, such as the +nternational

5oenant on 5iil and 'olitical 9i!hts hae an optional protocol that allows indiiduals who

hae had their ri!hts iolated &y mem&er states to petition the international #uman 9i!hts5ommittee. +nestment treaties commonly and routinely proide for enforcement &y indiiduals

or inestin! entities.18 and commercial a!reements of forei!ners with soerei!n !oernments

may &e enforced on the international plane.1

International legal theory

<ain article( +nternational le!al theories

+nternational le!al theory comprises a ariety of theoretical and methodolo!ical approaches used

to e;plain and analyse the content, formation and effectieness of pu&lic international law and

institutions and to su!!est improements. $ome approaches center on the Duestion of

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compliance( why states follow international norms in the a&sence of a coercitie power that

ensures compliance. Gther approaches focus on the pro&lem of the formation of international

rules( why states oluntarily adopt international law norms, that limit their freedom of action, inthe a&sence of a world le!islature while other perspecties are policy oriented( they ela&orate

theoretical frameworks and instruments to critici%e the e;istin! norms and to make su!!estions

on how to improe them. $ome of these approaches are &ased on domestic le!al theory, some areinterdisciplinary, and others hae &een deeloped e;pressly to analyse international law.

5lassical approaches to +nternational le!al theory are the Natural law, the 3clectic and the Le!al

 positiism schools of thou!ht.

The natural law approach ar!ues that international norms should &e &ased on a;iomatic truths.16th century natural law writer, Francisco de Eitoria, a professor of theolo!y at the >niersity of

$alamanca, e;amined the Duestions of the ust war , the $panish authority in the @mericas, and

the ri!hts of the Natie @merican peoples.

+n 16/4 #u!o Arotius ar!ued that nations as well as persons ou!ht to &e !oerned &y uniersal

 principle &ased on morality and diine ustice while the relations amon! polities ou!ht to &e!oerned &y the law of peoples, the jus gentium, esta&lished &y the consent of the community of

nations on the &asis of the principle of   pacta sunt servanda, that is, on the &asis of theo&serance of commitments. Gn his part, 3mmerich de Eattel ar!ued instead for the eDuality of

states as articulated &y 18th century natural law and su!!ested that the law of nations was

composed of custom and law on the one hand, and natural law on the other. 2urin! the 17thcentury, the &asic tenets of the Arotian or eclectic school, especially the doctrines of le!al

eDuality, territorial soerei!nty, and independence of states, &ecame the fundamental principles

of the 3uropean political and le!al system and were enshrined in the 168 'eace of Westphalia.

The early positiist school emphasi%ed the importance of custom and treaties as sources of

international law. 16th century @l&erico Aentili used historical e;amples to posit that positielaw ) jus voluntarium* was determined &y !eneral consent. 5ornelius an =ynkershoek  asserted

that the &ases of international law were customs and treaties commonly consented to &y ariousstates, while Cohn Caco& <oser  emphasi%ed the importance of state practice in international law.

The positiism school narrowed the ran!e of international practice that mi!ht Dualify as law,

faourin! rationality oer morality and ethics. The 1814 5on!ress of Eienna marked the formal

reco!nition of the political and international le!al system &ased on the conditions of 3urope.

<odern le!al positiists consider international law as a unified system of rules that emanates

from the states? will. +nternational law, as it is, is an "o&ectie" reality that needs to &e

distin!uished from law "as it should &e." 5lassic positiism demands ri!orous tests for le!al 

alidity and it deems irreleant all e;trale!al ar!uments./: