What makes international law binding

International humanitarian law regulates, among other things, the methods and means of warfare and the protection of certain categories of persons — for example, the sick and wounded, prisoners of war and civilians.

More specific treaties prohibit the use of certain types of weapons such as chemical or biological weapons, mines or cluster munitions or the protection of cultural property during armed conflict. Much of the development and codification of this body of law is the merit of the International Committee of the Red Cross, founded in by Henry Dunant, which is a private humanitarian institution based in Geneva and forms part of the International Red Cross and Red Crescent Movement.

At the transitional points between the law of peace and the law of armed conflict lies the legal regulation of the resort to force jus ad bellum — the law to engage in war which concerns the conditions that need to be met to use force legally as, for example, in instances of self-defence Article 51, UN Charter.

More recently, scholars also speak of the regulation of the transition to peace after the end of armed conflicts jus post-bellum — the law after war which includes questions over how to end armed conflicts, transitional justice and post-war reconstruction. The strict distinction between the law of peace and the law of armed conflict has been somewhat blurred with the rise of international human rights law and international criminal law.

Human rights law builds on and develops fundamental principles of humanitarian law for the protection of individuals. On the other hand, human rights have considerably influenced the refinement of humanitarian rules for the protection of combatants and civilians.

International criminal law has seen a rapid development after the end of the Cold War first with the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda and then with the establishment of the International Criminal Court in Consider now what it meant to establish, for example, an international legal prohibition of torture.

Torture was a common and legal method of interrogation before the seventeenth century. A legal prohibition of torture would mean that governments are obliged by international law not to allow their officials to use torture. How did an international legal norm prohibiting torture develop? What were its effects? Privileges included sovereign status, immunities, jurisdiction or membership in international organisations, for example.

Obligations towards other states arose from voluntary contracts, from the principle of non-intervention or from responsibilities for wrongful acts. The status of a sovereign state implied full membership in the international society of states.

It is a contentious issue in international law whether a territorial entity gains the legal status of a sovereign state depending only on a number of factual criteria such as the existence of a population, territory, effective government and capacity to enter into international relations or whether this requires also a formal recognition by other states.

Already the criteria of statehood are contentious, and in practice it is not always easy to determine whether all conditions are met. In addition, for political reasons states have sometimes recognised other states that did not fulfil one or more criteria of statehood, or they have not recognised states despite them fulfilling all criteria.

After the break-up of the former state of Yugoslavia, for example, Kosovo declared its independence from Serbia in Serbia has not formally recognised Kosovo as an independent sovereign state. Neither have a number of other states such as Russia, China and Spain, which all try to control movements for regional independence or autonomy in their own territory.

Coming back now to the example of the prohibition of torture, which options did individuals have under international law to seek redress for acts of torture? If a foreigner was tortured by officials of another state, the home state could complain to the latter. The individuals themselves, however, could do very little under international law, for individuals were not subjects of this body of law.

Even worse, if a state tortured its own citizens, this was an internal matter in which other states could not intervene. The most important and most concrete sources of international law are bilateral and multilateral treaties.

Multilateral treaties are usually prepared during long negotiations at diplomatic state conferences where a final treaty text is adopted and then opened for signature and ratification by states. When an agreed number of states have ratified the treaty, it enters into force and becomes binding on the member states.

Customary practices are even today still a common and highly contentious source of law. Customary law refers to the established practices of states that are supported by a subjective belief to be required by law. If a customary rule exists, it is binding on all states except where a state has persistently objected to this rule. You can imagine already that the deduction of legal rules from social practices and subjective beliefs poses many difficulties and bears many insecurities regarding proof and actual content.

Also during diplomatic conferences that prepare a treaty text, many difficult compromises are brokered. To paraphrase a saying that is often attributed to Otto von Bismarck, laws are like sausages.

It is better not to see them being made. In the context of our example of the prohibition of torture, imagine the following scenario: state A has signed and ratified the International Covenant on Civil and Political Rights, which contains a prohibition of torture in Article 7, and is also party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

This country fights terrorism and brings suspected terrorists to secret prisons in countries which are not party to any of the above conventions. In these prisons, the suspects endure intense interrogations which include sleep deprivation, waterboarding causing the sensation of drowning and other measures. As an international lawyer faced with this case your starting point would be the aforementioned international treaties that contain a prohibition of torture.

You would need to determine whether the interrogation measures amount to torture. Here, the codified definition in international treaties and the interpretation of this definition in previous cases can give you important guidance.

You would also need to determine whether the particular state in question has ratified the pertinent treaty or treaties. Hence one could argue that instances of torture on the territory of non-state parties do not fall within the ambit of the treaties.

Also a counterargument is possible. One could make a case for the extraterritorial application of the treaty if the acts of torture on foreign soil were effectively controlled by a state that is a member to the treaty.

You would then proceed to see whether a customary rule exists that prohibits the use of torture. Even if the treaties prohibiting torture have not been ratified by a state, you could argue that the treaty has codified an already existing customary rule or, if a large majority of states has ratified the treaties, that this is evidence that a customary rule has been formed. In light of horrendous historical experiences, you may also argue that the prohibition of torture is of such fundamental importance that today no derogation from this rule is permitted.

In other words, you would argue that the prohibition of torture is a peremptory rule of international law ius cogens — peremptory law that does not permit any exception. You can see now how the early idea of state consent as a necessary requirement for an international rule still permeates these argumentations.

The main difficulty often consists in establishing state consent or, at times, in constructing alternatives for it. The end of the Second World War and the end of the Cold War are probably the most significant historical watersheds in the development of recent public international law. The end of the Second World War in led to the establishment of the United Nations and the rapid development of several areas of international law, including human rights law, international criminal law and international economic law.

The United Nations is the most important global intergovernmental organisation with major offices in New York, Geneva, Nairobi and Vienna. It was established with the principal aim to ensure peace and security through international co-operation and collective measures.

As of , it has member states. Article 2 of the UN Charter, the founding treaty of the United Nations, confirms as guiding principles the sovereign equality of the member states, the peaceful settlement of disputes, the prohibition of the use of force and the principle of non-intervention.

Delegates of all member states meet once a year during the General Assembly to discuss pertinent issues of world politics and vote on non-binding resolutions. The Security Council is the highest executive organ of the United Nations in which the representatives of ten selected member states and five states with permanent seats decide on issues of peace and security through binding resolutions, which may result in economic sanctions or even military actions.

Major reform initiatives of the composition or voting procedures of the Security Council have been unsuccessful so far.

This taints the effectiveness and the democratic legitimacy of the Security Council and, especially during the Cold War, it severely constrained the Security Council as two of its key members the United States and the Soviet Union were engaged in an ideological conflict. Politically, however, the right to veto was a necessary concession to ensure the participation of the most powerful nations in a world organisation. Numerous principal and subsidiary UN organs and specialised agencies engage in the application, enforcement and development of international law.

This work comprises, for example, classical legal work in the International Law Commission and special committees of the General Assembly, practical work in the field and diplomatic efforts by Offices of High Commissioners and their staff, or actions taken by the Security Council. All of these bodies, and many more, promote and shape international law in various ways. In the International Law Commission, for example, a group of experts create reports and drafts on specific topics that are then submitted to a committee of the General Assembly and can provide an important basis for later treaty negotiations.

The Offices of the High Commissioners for Human Rights and Refugees do important work in the field where their staff endeavour to uphold international law often in crisis situations. The Vienna Convention is in force for 81 nation-states, not including the United States. The reason it is not in force for the United States is that a stalemate exists between Congress and the Executive Branch over the allocation of authority between the two branches to enter into and terminate international agreements treaties in the international sense on behalf of the United States.

The stalemate would not exist if such agreements were not regarded as binding on the United States internationally. It is precisely because they are regarded as binding that so much is at stake between the two branches of government. The United States government has frequently demonstrated that it regards treaties including treaties for U. For example, when France breached the Air Service Agreement between itself and the United States, our government asserted a breach of an international obligation and applied counter-measures to induce France to rectify its breach.

The U. Many of Mr. Bolton's assertions have to do with the effect of treaties in domestic U. As a matter of U. The effect would be that courts and other decision-makers within the United States would follow the Congressional directive, but the United States would be in violation of its international obligation to its other treaty partner s unless there is some valid reason under international treaty law to excuse U.

The valid reasons are much like those recognized in American contract law relating to agreements between private parties, including in international law such things as unforeseen, fundamentally changed circumstances or material breach by the other party to the treaty. The fact that there may valid excuses for nonperformance does not mean that treaties are not binding under international law, any more than valid excuses for nonperformance of contracts means that they are not binding under domestic law.

Such a decision would only carry weight as evidence of international law where the court is of very high standing and where the international law issue is central to the case and receives careful consideration. In addition, decisions of national courts may in themselves be evidence of state practice on a particular topic. In an important early case, The Lotus the Permanent Court of International Justice examined decisions of French national courts in order to discover what the state practice of France was on the subject at hand.

Read statements made by Ireland on certain international law issues. How International Law Works International treaties, custom and state practice and judicial decisions are important sources of international law. Tue, 02 Apr BST. International law is the term given to the rules which govern relations between states. Article 38 of the Statute of the International Court of Justice directs the Court to apply the following sources of law in deciding disputes: " a international conventions, whether general or particular, establishing rules expressly recognised by contesting states; b international custom, as evidence of a general practice accepted as law; c the general principles of law recognised by civilised nations; d … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

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