Gavin Howe
The legal system of a country is shaped by its history and unique characteristics, and there are several types of national legal systems, including civil law, common law, customary law, and religious law. International law, on the other hand, governs the relationships and conduct of sovereign states, international organisations, and individuals. International law includes treaties, human rights, diplomacy, environmental preservation, and war crimes. While international law is not directly enforced by a governing body, it is sustained by reciprocity and a sense of enlightened self-interest, where states that breach international rules suffer a decline in credibility.
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International law
Treaties are a key aspect of international law. They are binding through the principle of pacta sunt servanda, which allows states to create legal obligations on themselves through consent. The interpretation of treaties is guided by the Vienna Convention on the Law of Treaties (VCLT), which outlines three main approaches: the textual, subjective, and teleological. The VCLT states that a treaty should be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose".
While international law does not have a central governing body like a federal system, it plays a crucial role in promoting peace and order between nations.
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Human rights
The United Nations (UN) has played a pivotal role in the development of human rights as a common standard for all nations. The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, is a foundational text in the history of human rights. It sets out fundamental human rights that should be universally protected, including civil, cultural, economic, political, and social rights. The UDHR has been translated into over 500 languages, making it the most translated document in the world, reflecting its global significance.
The UDHR is groundbreaking for its universalist language, which transcends cultural, political, and religious boundaries. It affirms that all human beings are born free and equal in dignity and rights, regardless of nationality, race, sex, language, religion, or any other status. This declaration is not a legally binding treaty but serves as a declaration of basic human rights and freedoms, providing a common standard for all nations to aspire to.
The UN has established mechanisms to promote and protect human rights, such as the Human Rights Council, which includes independent experts who advise on human rights issues. The Office of the High Commissioner for Human Rights (OHCHR) is the focal point for UN human rights activities and undertakes field work, while also serving as the secretariat for the Human Rights Council and other UN human rights organs. The UN's Rule of Law initiative acknowledges the interrelatedness of the rule of law with human rights, aiming to curb corruption, restrain abuse of power, and establish a social contract between people and the state.
The UDHR has inspired the development of international human rights law and the formulation of the International Bill of Rights, which came into force in 1976. While the UDHR itself is not legally binding, its principles have been incorporated into subsequent international treaties, regional instruments, and national constitutions. All UN member states have ratified at least one of the nine binding treaties influenced by the UDHR, demonstrating its impact on the global recognition of human rights.
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Treaties
The 1969 Vienna Convention on the Law of Treaties (VCLT) established rules and guidelines for creating, amending, interpreting, and terminating treaties, as well as for resolving disputes and alleged breaches. Treaties may be seen as "self-executing", in that becoming a party puts the treaty and its obligations into action. Alternatively, treaties may be non-self-executing and require "implementing legislation", which involves a change in the domestic law of a state party to enable it to fulfil its treaty obligations.
After their adoption, treaties and their amendments must follow the official legal procedures of the United Nations, as applied by the Office of Legal Affairs, including signature, ratification, and entry into force. Reservations are unilateral statements that seek to exclude or modify the legal obligation and its effects on the reserving state. These must be included at the time of signing or ratification.
Historically, treaties tend to fall into three broad categories: commercial, alliance, and territorial. Commercial treaties first emerged in the 17th century as agreements between European fur trading companies and local First Nations. Alliance treaties, or "treaties of peace, friendship, and alliance", emerged in the late 17th to early 18th century. Territorial treaties, dictating land rights, were signed between 1760 and 1923.
In the United States, the Constitution provides that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur" (Article II, section 2). Treaties to which the United States is a party have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land". In recent decades, presidents have frequently entered the United States into international agreements without the advice and consent of the Senate, known as "executive agreements". Although not brought before the Senate for approval, executive agreements are still binding on the parties under international law.
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National legal systems
Customary law arises from patterns of behaviour in nations, with states following certain practices out of a sense of legal obligation. Over time, these practices develop into international law. For example, prohibitions on genocide and certain forms of torture are now agreed upon by most nations.
Religious law, such as Sharia law in Islamic countries, Halakha in Judaism, and Canon law in some Christian groups, can be used as the basis for a country's legal system. For instance, Saudi Arabia and Iran govern themselves by Sharia law, and while most countries use Sharia law as a supplement to national law, it can relate to all aspects of civil law, including property rights, contracts, and public law. Canon law, on the other hand, is not considered divine law as it is not found in revelation. It is the internal ecclesiastical law that governs the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and individual national churches within the Anglican Communion.
In addition to these four major legal traditions, transnational law refers to a body of both national and international rules that transcend nation-states. Supranational law, a more recent concept, arises when nations explicitly cede their right to make decisions to a system's judiciary and legislature, which then have the right to make laws directly effective in each member state. The European Union is a common example of a supranational system.
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Rule of law
The rule of law is a set of principles that ensures an orderly and just society. It is foundational to people's access to public services, curbing corruption, restraining the abuse of power, and establishing a social contract between people and the state. The rule of law is an important component of sustaining peace and is strongly linked to development.
The rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are consistent with international human rights principles. It includes the prevention of serious violations of human rights, achieving credible accountability for those responsible at national and international levels, and empowering individuals and communities to make use of justice mechanisms to protect their fundamental human rights. The four universal principles are the building blocks for any rule-of-law system. These include the ability to access information from the government, the ability for citizens to collaborate with government officials, the freedom to bring complaints to the government without repercussions, and the freedom of opinion, expression, assembly, and association.
The rule of law is a durable system of laws, institutions, and norms that delivers accountability, just law, open government, and accessible and impartial justice. Many countries strive to uphold the rule of law, where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed.
The contemporary national legal systems are generally based on one of four major legal traditions: civil law, common law, customary law, religious law, or combinations of these. Civil law is the most widespread by landmass and population, while common law is employed by the greatest number of people compared to any single civil law system. Common law was developed in England and was later inherited by the Commonwealth of Nations and almost every former colony of the British Empire (except Malta).
International law, a term coined by Jeremy Bentham in 1789, refers to the relationships between states. Treaties are binding through the principle of pacta sunt servanda, which allows states to create legal obligations on themselves through consent. International law is largely silent on the issue of nationality law, with the exception of cases of dual nationality or refugee law.
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Frequently asked questions
International law is a set of rules and principles governing the relations and conduct of sovereign states with each other, as well as with international organisations and individuals.
The sources of international law include treaties, customary international law, general principles of law, judicial decisions, and scholarly articles. Treaties are agreements between nations that are governed by international law and interpreted by national courts. Customary international law arises from patterns of behaviour that states follow out of a sense of legal obligation. General principles of law are aspects of common law shared by most countries. Judicial decisions and scholarly articles play a role when the prior three sources of law are unclear or absent.
The goals of international law include promoting peace and order, preventing violations of human rights, achieving credible accountability for those responsible at national and international levels, and empowering individuals and communities to protect their fundamental human rights. International law also plays a role in economic and social development, international trade, environmental preservation, and addressing war crimes.
International law is enforced through reciprocity and a sense of enlightened self-interest. States that breach international rules suffer a decline in credibility, which may prejudice their future relations with other states. While military force or economic sanctions are rarely used to enforce international law, consistent rule violations would jeopardize the value that the international legal system brings to the community of nations.
