International Law: Global Application And Challenges

International law is a set of rules, norms, and standards that states and other actors feel an obligation to obey in their mutual relations. It differs from state-based domestic legal systems in that it operates largely through consent, as there is no universally accepted authority to enforce it upon sovereign states. The sources of international law include international custom, treaties, and general principles of law recognised by most national legal systems. The application of international law can be challenging due to the lack of a centralised global authority, and violations of international norms often go unpunished. However, international law plays a crucial role in promoting peace and order between nations and setting standards for global governance.

International law and municipal law

International law is a set of rules, norms, and standards that states and other actors feel an obligation to obey in their mutual relations. It is distinct from state-based domestic legal systems, operating largely through consent as there is no universally accepted authority to enforce it upon sovereign states.

Municipal law, on the other hand, is a local or national law applicable within a defined territory. It deals with the domestic aspects of government and issues between individuals and the administrative apparatus.

The relationship between international and municipal law is complex and variable. There are two main theories that attempt to explain their relationship: dualism and monism.

Dualism considers international and municipal law as two distinct branches of law, acting independently based on their sources, principles, and subjects. According to this theory, international law cannot affect an individual from a state until it has been transformed into state or domestic law.

Monism, on the other hand, views international and municipal law as a single entity. It is based on the Kantian philosophy of law, which posits that laws derive from a single source, and any domestic law that contradicts international law is invalid. This theory always considers international law superior to municipal law, and in cases of conflict, international law prevails.

The United States, for example, stipulates in its Constitution that treaties are "the supreme Law of the Land." In contrast, the United Kingdom holds that customary international law forms part of the common law, but views treaties as purely executive acts, requiring relevant legislation for them to become part of domestic law.

In practice, the division between monism and dualism is often blurred. Many countries with older or unwritten constitutions do not have explicit provisions for international law in their domestic systems, and there is a growing support for monism principles, especially in relation to human rights and humanitarian law.

Treaties and agreements

Treaties are a means of cooperation between sovereign states, and they generally cannot conflict with the domestic laws of the participating nations. They are a key mechanism for applying international law, as they allow states to create legal obligations for themselves and other participating countries.

The process of creating a treaty typically involves long negotiations at diplomatic state conferences, where a final treaty text is agreed upon and then opened for signatures and ratification by states. Once a specified number of states have ratified the treaty, it enters into force and becomes binding on those member states.

The United Nations Charter, for example, is considered an international treaty, and as such, it is an instrument of international law. It outlines the major principles of international relations, including the sovereign equality of states and the prohibition of the use of force.

Treaties can also be used to establish international organisations, such as the International Criminal Court (ICC) and the International Tribunal for the Law of the Sea (ITLOS), which were established by conventions drafted within the UN but are now independent entities with special cooperation agreements.

In addition to treaties, international law also encompasses customary international law, which arises from established international practices and the sense of legal obligation that develops over time. Most nations, for example, have agreed to prohibitions on genocide and certain forms of torture, even without formal written treaties.

International humanitarian law

IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols. The Geneva Conventions are the result of a process that developed in several stages between 1864 and 1949, focusing on the protection of civilians and those who can no longer fight in an armed conflict.

IHL is traditionally seen as distinct from international human rights law, which governs the conduct of a state towards its people. However, the two branches of law are complementary and overlap in some areas.

IHL is composed of two historical streams: the law of The Hague, or the laws of war proper, and the law of Geneva, or humanitarian law. The law of The Hague establishes the rights and duties of belligerents in the conduct of operations and limits the choice of means to do harm. It also defines combatants and examines the issue of military objectives.

The law of Geneva, on the other hand, is directly inspired by the principle of humanity and relates to those not participating in the conflict, as well as to military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations.

IHL sets out the responsibilities of states and non-state armed groups during an armed conflict. It requires, among other things, the rapid and unimpeded passage of humanitarian aid during armed conflicts, the freedom of movement for humanitarian workers in conflict areas, and the protection of civilians, refugees, prisoners, and the wounded and sick.

IHL is now accepted as international customary law in many parts, but it is increasingly violated by warring parties. Attacks on buildings belonging to relief organizations, hijacking of vehicles and convoys, and attacks on hospitals and schools are some of the violations that hinder humanitarian action and prevent millions from receiving life-saving assistance.

As one of the world's largest humanitarian donors, the EU has been committed to promoting compliance with IHL. All 27 EU member countries have ratified the four Geneva Conventions and their Additional Protocols. The EU has also issued guidelines on promoting compliance with IHL and continues to publish reports on their implementation.

International cooperation

• Courts and tribunals
• Multilateral treaties
• Security Council action, such as peacekeeping missions, sanctions, or the use of force when there is a threat to international peace and security
• The work of the General Assembly and its subsidiary bodies, such as the International Law Commission and the UN Commission on International Trade Law
• The work of the United Nations Office of Legal Affairs, which provides a unified central legal service for the Secretariat and the principal and other organs of the United Nations
• The work of the International Law Commission, which promotes the progressive development of international law and its codification
• The work of the United Nations Commission on International Trade Law, which specializes in commercial law, with a focus on the modernization and harmonization of rules on international business
• Treaties and conventions, such as the UN Convention on the Law of the Sea, which lays down a comprehensive regime of law and order in the world's oceans and seas
• Technical assistance for UN Member States in connection with a range of legal matters, such as the provision of advice, expertise, research, analysis, training or other assistance
• The Programme of Assistance for International Law, which is meant to contribute to a better knowledge of international law as a means for strengthening international peace and security and promoting friendly relations and co-operation among States

International organisations

> "an organisation established by treaty or other instrument governed by international law and possessing its own international legal personality."

This definition serves as a starting point, but it does not acknowledge that some organisations may function as international organisations without possessing a separate legal personality. The UN Economic and Social Council has emphasised a distinction between intergovernmental organisations (IGOs) and international non-governmental organisations (INGOs). All international organisations have members, typically restricted to states, although other international organisations can be included. Non-members may be allowed to participate in meetings as observers.

The Yearbook of International Organisations lists several international organisations, including the UN, WTO, World Bank, and IMF. These organisations usually consist of a plenary organ, where member states can be represented and heard; an executive organ, which decides matters within the organisation's competence; and an administrative organ, which executes the decisions of the other organs and handles secretarial duties.

The UN Security Council (UNSC), for instance, has the power to take decisive and binding actions under Chapter VII of the UN Charter against states that pose a threat to peace, breach the peace, or commit acts of aggression. The UNSC's actions can include economic sanctions, military action, and the use of force, but they require the support of a majority of member states and the permanent five members of the UNSC.

The UN General Assembly (UNGA), concerned about the requirement for the approval of the USSR during the Cold War, adopted the "Uniting for Peace" resolution in 1950, allowing it to authorise the use of force through recommendations. This resolution also led to the practice of UN peacekeeping, notably in East Timor and Kosovo.

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