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International law is the set of rules generally regarded and accepted as
binding in relations between states and between nations.12 It serves as a
framework for the practice of stable and organized international relations.3
International law differs from state-based legal systems in that it is primarily
applicable to countries rather than to private citizens. National law may become
international law when treaties delegate national jurisdiction to supranational
tribunals such as the European Court of Human Rights or the International
Criminal Court. Treaties such as the Geneva Conventions may require national law
to conform.
Much of international law is consent-based governance. This means
that a state member of the international community is not obliged to abide by
this type of international law, unless it has expressly consented to a
particular course of conduct.4 This is an issue of state sovereignty. However,
other aspects of international law are not consent-based but still are
obligatory upon state and non-state actors such as customary international law
and peremptory norms (jus cogens).
The term "international law" can refer to
three distinct legal disciplines:
Public international law, which governs the
relationship between states and international entities. It includes these legal
fields: treaty law, law of sea, international criminal law, the laws of war or
international humanitarian law and international human rights law.
Private
international law, or conflict of laws, which addresses the questions of (1)
which jurisdiction may hear a case, and (2) the law concerning which
jurisdiction applies to the issues in the case.
Supranational law or the law
of supranational organizations, which concerns regional agreements where the
laws of nation states may be held inapplicable when conflicting with a
supranational legal system when that nation has a treaty obligation to a
supranational collective.
International law has existed since the mid-19th
century. Two sophisticated legal systems developed in the Western World: the
codified systems of continental European states (American Civil Law) and English
common law, upon which the judge-made law of the United States is primarily
based. In the 20th century, the two World Wars and the formation of the League
of Nations (and other international organizations such as the International
Labor Organization) all contributed to accelerate this process and established
much of the foundations of modern public international law. After the failure of
the Treaty of Versailles and World War II, the League of Nations was replaced by
the United Nations, founded under the UN Charter. The UN has also been the locus
for the development of new advisory (non-binding) standards, such as the
Universal Declaration of Human Rights. Other international norms and laws have
been established through international agreements, including the Geneva
Conventions on the conduct of war or armed conflict, as well as by agreements
implemented by other international organizations such as the International Labor
Organization, the World Health Organization, the World Intellectual Property
Organization, the International Telecommunication Union, UNESCO, the World Trade
Organization, and the International Monetary Fund. The development and
consolidation of such conventions and agreements has proven to be of great
importance in the realm of international relations.
A source of international
law is where an international decision maker or researcher looks to verify the
substantive legal rule governing a legal dispute or academic discourse. The
sources of international law applied by the community of nations to find the
content of international law are listed under Article 38.1 of the Statute of the
International Court of Justice: Treaties, international customs, and general
principles are stated as the three primary sources; and judicial decisions and
scholarly writings are expressly designated as the subsidiary sources of
international law. Many scholars agree that the fact that the sources are
arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit
hierarchy of sources.5 However, there is no concrete evidence, in the decisions
of the international courts and tribunals, to support such strict hierarchy, at
least when it is about choosing international customs and treaties. In addition,
unlike the Article 21 of the Rome Statute of the International Criminal Court,
which clearly defines hierarchy of applicable law (or sources of international
law), the language of the Article 38 do not explicitly support hierarchy of
sources.
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