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123-397: According to Article II of the convention's text, it has two goals: This article related to international law is a stub . You can help Misplaced Pages by expanding it . This article related to a treaty is a stub . You can help Misplaced Pages by expanding it . Public international law International law (also known as public international law and the law of nations )

246-631: A national legal system and international law is complex and variable. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court . Treaties such as the Geneva Conventions require national law to conform to treaty provisions. National laws or constitutions may also provide for

369-507: A "general recognition" by states "whose interests are specially affected". The second element of the test, opinio juris, the belief of a party that a particular action is required by the law is referred to as the subjective element. The ICJ has stated in dictum in North Sea Continental Shelf that, "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such

492-895: A UN agency with the mission of protecting employment rights which was established in 1919. The ILO has a constitution setting out a number of aims, including regulating work hours and labour supply, protecting workers and children and recognising equal pay and the right to free association, as well as the Declaration of Philadelphia of 1944, which re-defined the purpose of the ILO. The 1998 Declaration on Fundamental Principles and Rights at Work further binds ILO member states to recognise fundamental labour rights including free association, collective bargaining and eliminating forced labour, child labour and employment discrimination. The ILO have also created labour standards which are set out in their conventions and recommendations. Member states then have

615-399: A broad range of domains, including war and diplomacy , economic relations , and human rights . International law differs from state-based domestic legal systems in that it operates largely through consent , since there is no universally accepted authority to enforce it upon sovereign states . States and non-state actors may choose to not abide by international law, and even to breach

738-564: A conference in The Hague organized by Tobias Asser in 1893. This was followed by successive conferences in 1894, 1900, and 1904. Like their counterparts in Montevideo, these conferences produced several multilateral agreements on various topics within conflict of laws. Thereafter, the pace of these meetings slowed, with the next conventions occurring in 1925 and 1928. The seventh meeting at The Hague occurred in 1951, at which point

861-545: A country is party. Moreover, in federal republics where substantial lawmaking occurs at the subnational level—notably in the United States—issues within conflict of laws often arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than of foreign countries. Western legal systems first recognized a core underpinning of conflict of laws—namely, that "foreign law, in appropriate instances, should be applied to foreign cases"—in

984-549: A court in another jurisdiction; and choice of law , which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law . The term conflict of laws is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. Elsewhere,

1107-403: A dispute, determining if a domestic court has jurisdiction and determining whether foreign judgments can be enforced . The first question relates to whether the domestic court or a foreign court is best placed to decide the case. When determining the national law that should apply, the lex causae is the law that has been chosen to govern the case, which is generally foreign, and the lexi fori

1230-499: A jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause ). In the EU, this is governed by the Rome I Regulation . Choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract and will be determined by the law of

1353-582: A local judgment between the same parties. On a global level, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was introduced in 1958 to internationalise the enforcement of arbitral awards , although it does not have jurisdiction over court judgments. A state must prove that it has jurisdiction before it can exercise its legal authority. This concept can be divided between prescriptive jurisdiction, which

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1476-496: A multilateral treaty. Where a treaty does not have provisions allowing for termination or withdrawal, such as the Genocide Convention, it is prohibited unless the right was implied into the treaty or the parties had intended to allow for it. A treaty can also be held invalid, including where parties act ultra vires or negligently, where execution has been obtained through fraudulent, corrupt or forceful means, or where

1599-613: A number of countries began to distinguish between acta jure gestionis , commercial actions, and acta jure imperii , government actions; the restrictive theory of immunity said states were immune where they were acting in a governmental capacity but not a commercial one. The European Convention on State Immunity in 1972 and the UN Convention on Jurisdictional Immunities of States and their Property attempt to restrict immunity in accordance with customary law. Historically individuals have not been seen as entities in international law, as

1722-795: A number of treaties focused on environmental protection were ratified, including the Declaration of the United Nations Conference on the Human Environment of 1972, the World Charter for Nature of 1982, and the Vienna Convention for the Protection of the Ozone Layer of 1985. States generally agreed to co-operate with each other in relation to environmental law, as codified by principle 24 of

1845-433: A particular legal circumstance. Historically the comity theory has been used although the definition is unclear, sometimes referring to reciprocity and sometimes being used as a synonym for private international law. Story distinguished it from "any absolute paramount obligation, superseding all discretion on the subject". There are three aspects to conflict of laws – determining which domestic court has jurisdiction over

1968-610: A range of entities, including the Church , mercantile city-states, and kingdoms, most of which had overlapping and ever-changing jurisdictions. As in China and India, these divisions prompted the development of rules aimed at providing stable and predictable relations. Early examples include canon law , which governed ecclesiastical institutions and clergy throughout Europe; the lex mercatoria ("merchant law"), which concerned trade and commerce; and various codes of maritime law , such as

2091-573: A special status. The rules in a treaty can only be considered national law if the contents of the treaty have been enacted first. An example is the United Kingdom; after the country ratified the European Convention on Human Rights , the convention was only considered to have the force of law in national law after Parliament passed the Human Rights Act 1998 . In practice, the division of countries between monism and dualism

2214-435: A starting point but does not recognise that organisations can have no separate personality but nevertheless function as an international organisation. The UN Economic and Social Council has emphasised a split between inter-government organisations (IGOs), which are created by inter-governmental agreements, and international non-governmental organisations (INGOs). All international organisations have members; generally this

2337-546: A state and res communis which is territory that cannot be acquired by a state. There have historically been five methods of acquiring territorial sovereignty , reflecting Roman property law: occupation, accretion, cession , conquest and prescription . The law of the sea is the area of international law concerning the principles and rules by which states and other entities interact in maritime matters. It encompasses areas and issues such as navigational rights, sea mineral rights, and coastal waters jurisdiction. The law of

2460-400: A state and, separately, it may recognise that nation's government as being legitimate and capable of representing the state on the international stage. There are two theories on recognition; the declaratory theory sees recognition as commenting on a current state of law which has been separately satisfied whereas the constitutive theory states that recognition by other states determines whether

2583-431: A state can be considered to have legal personality. States can be recognised explicitly through a released statement or tacitly through conducting official relations, although some countries have formally interacted without conferring recognition. Throughout the 19th century and the majority of the 20th century, states were protected by absolute immunity, so they could not face criminal prosecution for any actions. However

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2706-414: A treaty "shall 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 the light of its object and purpose". This represents a compromise between three theories of interpretation: the textual approach which looks to the ordinary meaning of the text, the subjective approach which considers factors such as the drafters' intention, and

2829-634: A treaty but such violations, particularly of peremptory norms , can be met with disapproval by others and in some cases coercive action ranging from diplomatic and economic sanctions to war. The sources of international law include international custom (general state practice accepted as law), treaties , and general principles of law recognised by most national legal systems. Although international law may also be reflected in international comity —the practices adopted by states to maintain good relations and mutual recognition—such traditions are not legally binding . The relationship and interaction between

2952-504: A way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it". A committee of the International Law Association has argued that there is a general presumption of an opinio juris where state practice is proven but it may be necessary if the practice suggests that the states did not believe it was creating a precedent. The test in these circumstances

3075-465: Is also able to issue a conditional declaration stating that it will consent to a given treaty only on the condition of a particular provision or interpretation. Article 54 of the VCLT provides that either party may terminate or withdraw from a treaty in accordance with its terms or at any time with the consent of the other party, with 'termination' applying to a bilateral treaty and 'withdrawal' applying to

3198-600: Is claiming rights under refugee law but as, argued by the political theorist Hannah Arendt , human rights are often tied to someone's nationality. The European Court of Human Rights allows individuals to petition the court where their rights have been violated and national courts have not intervened and the Inter-American Court of Human Rights and the African Court on Human and Peoples' Rights have similar powers. Traditionally, sovereign states and

3321-452: Is considered the seminal event in international law. The resulting Westphalian sovereignty is said to have established the current international legal order characterised by independent nation states , which have equal sovereignty regardless of their size and power, defined primarily by non-interference in the domestic affairs of sovereign states, although historians have challenged this narrative. The idea of nationalism further solidified

3444-629: Is defined under Article 1 of the Montevideo Convention on the Rights and Duties of States as a legal person with a permanent population, a defined territory, government and capacity to enter relations with other states. There is no requirement on population size, allowing micro-states such as San Marino and Monaco to be admitted to the UN, and no requirement of fully defined boundaries, allowing Israel to be admitted despite border disputes . There

3567-406: Is in their mutual interest to do so. Scholars began to consider ways to resolve the question of how and when formally equal sovereign States ought to recognize each other's authority. The doctrine of comity was introduced as one of the means to answer these questions. Comity has undergone various changes since its creation. However, it still refers to the idea that every State is sovereign; often,

3690-407: Is no academic consensus about what is included within this scope. They are considered to be derived from both national and international legal systems, although including the latter category has led to debate about potential cross-over with international customary law. The relationship of general principles to treaties or custom has generally been considered to be "fill[ing] the gaps" although there

3813-591: Is often more complicated; countries following both approaches may accept peremptory norms as being automatically binding and they may approach treaties, particularly later amendments or clarifications, differently than they would approach customary law. Many countries with older or unwritten constitutions do not have explicit provision for international law in their domestic system and there has been an upswing in support for monism principles in relation to human rights and humanitarian law, as most principles governing these concepts can be found in international law. A state

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3936-627: Is restricted to states, although it can include other international organisations. Sometimes non-members will be allowed to participate in meetings as observers. The Yearbook of International Organizations sets out a list of international organisations, which include the UN, the WTO, the World Bank and the IMF. Generally organisations consist of a plenary organ, where member states can be represented and heard; an executive organ, to decide matters within

4059-539: Is still no conclusion about their exact relationship in the absence of a hierarchy. A treaty is defined in Article 2 of the Vienna Convention on the Law of Treaties (VCLT) as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". The definition specifies that

4182-471: Is the territorial principle , which states that a nation has jurisdiction over actions which occur within its territorial boundaries. The second is the nationality principle , also known as the active personality principle, whereby a nation has jurisdiction over actions committed by its nationals regardless of where they occur. The third is the passive personality principle, which gives a country jurisdiction over any actions which harm its nationals. The fourth

4305-578: Is the authority of a legislature to enact legislation on a particular issue, and adjudicative jurisdiction, which is the authority of a court to hear a particular case. This aspect of private international law should first be resolved by reference to domestic law, which may incorporate international treaties or other supranational legal concepts, although there are consistent international norms. There are five forms of jurisdiction which are consistently recognised in international law; an individual or act can be subject to multiple forms of jurisdiction. The first

4428-444: Is the national law of the court making the determination. Some examples are lex domicilii , the law of the domicile, and les patriae , the law of the nationality. The rules which are applied to conflict of laws will vary depending on the national system determining the question. There have been attempts to codify an international standard to unify the rules so differences in national law cannot lead to inconsistencies, such as through

4551-467: Is the protective principle, where a nation has jurisdiction in relation to threats to its "fundamental national interests". The final form is universal jurisdiction , where a country has jurisdiction over certain acts based on the nature of the crime itself. Following World War II, the modern system for international human rights was developed to make states responsible for their human rights violations. The UN Economic and Security Council established

4674-575: Is the set of rules , norms, and standards that states and other actors feel an obligation to obey in their mutual relations and generally do obey. In international relations, actors are simply the individuals and collective entities, such as states, international organizations , and non-state groups, which can make behavioral choices, whether lawful or unlawful. Rules are formal, often written expectations for behavior and norms are less formal, customary expectations about appropriate behavior that are frequently unwritten. It establishes norms for states across

4797-407: Is the set of rules or laws a jurisdiction applies to a case , transaction , or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction , rules regarding when it is appropriate for a court to hear such a case; foreign judgments , dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of

4920-428: Is whether opinio juris can be proven by the states' failure to protest. Other academics believe that intention to create customary law can be shown by states including the principle in multiple bilateral and multilateral treaties, so that treaty law is necessary to form customs. The adoption of the VCLT in 1969 established the concept of jus cogens , or peremptory norms, which are "a norm accepted and recognized by

5043-496: Is widely regarded as the father of international law, being one of the first scholars to articulate an international order that consists of a "society of states" governed not by force or warfare but by actual laws, mutual agreements, and customs. Grotius secularised international law; his 1625 work, De Jure Belli ac Pacis , laid down a system of principles of natural law that bind all nations regardless of local custom or law. He inspired two nascent schools of international law,

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5166-537: The "Uniting for Peace" resolution of 3 November 1950, which allowed the organ to pass recommendations to authorize the use of force. This resolution also led to the practice of UN peacekeeping , which has been notably been used in East Timor and Kosovo . There are more than one hundred international courts in the global community, although states have generally been reluctant to allow their sovereignty to be limited in this way. The first known international court

5289-793: The EFTA Court and the Court of Justice of the Andean Community . Interstate arbitration can also be used to resolve disputes between states, leading in 1899 to the creation of the Permanent Court of Arbitration which facilitates the process by maintaining a list of arbitrators. This process was used in the Island of Palmas case and to resolve disputes during the Eritrean-Ethiopian war . The ICJ operates as one of

5412-471: The Hague and Geneva Conventions , the first of which was passed in 1864. Colonial expansion by European powers reached its peak in the late 19th century and its influence began to wane following the unprecedented bloodshed of World War I , which spurred the creation of international organisations. Right of conquest was generally recognized as international law before World War II . The League of Nations

5535-625: The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and the Brussels Regulations . These treaties codified practice on the enforcement of international judgments, stating that a foreign judgment would be automatically recognised and enforceable where required in the jurisdiction where the party resides, unless the judgement was contrary to public order or conflicted with

5658-464: The Hobbesian notion that the state of nature was one of war and conflict, arguing that the natural state of the world is actually peaceful but weak and uncertain without adherence to the law of nations. The actions of a state consist of nothing more than the sum of the individuals within that state, thereby requiring the state to apply a fundamental law of reason, which is the basis of natural law. He

5781-715: The Holy See were the sole subjects of international law. With the proliferation of international organisations over the last century, they have also been recognised as relevant parties. One definition of international organisations comes from the ILC's 2011 Draft Articles on the Responsibility of International Organizations which in Article 2(a) states that it is "an organization established by treaty or other instrument governed by international law and possessing its own international legal personality". This definition functions as

5904-465: The Indian subcontinent was divided into various states, which over time developed rules of neutrality, treaty law , and international conduct, and established both temporary and permanent embassies . Following the collapse of the western Roman Empire in the fifth century CE, Europe fragmented into numerous often-warring states for much of the next five centuries. Political power was dispersed across

6027-682: The International Bank for Reconstruction and Development (World Bank) to the World Health Organization furthered the development of a multilateralist approach as states chose to compromise on sovereignty to benefit from international cooperation. Since the 1980s, there has been an increasing focus on the phenomenon of globalisation and on protecting human rights on the global scale, particularly when minorities or indigenous communities are involved, as concerns are raised that globalisation may be increasing inequality in

6150-747: The International Covenant on Economic, Social and Cultural Rights (ICESCR). These two documents along with the UDHR are considered the International Bill of Human Rights . Non-domestic human rights enforcement operates at both the international and regional levels. Established in 1993, the Office of the UN High Commissioner for Human Rights supervises Charter-based and treaty-based procedures. The former are based on

6273-602: The Rio Declaration of 1972. Despite these, and other, multilateral environmental agreements covering specific issues, there is no overarching policy on international environmental protection or one specific international organisation, with the exception of the UN Environmental Programme . Instead, a general treaty setting out the framework for tackling an issue has then been supplemented by more specific protocols. Climate change has been one of

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6396-659: The Rolls of Oléron — aimed at regulating shipping in North-western Europe — and the later Laws of Wisby , enacted among the commercial Hanseatic League of northern Europe and the Baltic region . In the Islamic world , Muhammad al-Shaybani published Al-Siyar Al-Kabīr in the eighth century, which served as a fundamental reference work for siyar , a subset of Sharia law , which governed foreign relations. This

6519-566: The UN Commission on Human Rights in 1946, which developed the Universal Declaration of Human Rights (UDHR), which established non-binding international human rights standards, for work, standards of living, housing and education, non-discrimination, a fair trial and prohibition of torture. Two further human rights treaties were adopted by the UN in 1966, the International Covenant on Civil and Political Rights (ICCPR) and

6642-458: The "law of nations", which unlike its eponymous Roman predecessor, applied natural law to relations between states. In Islam, a similar framework was developed wherein the law of nations was derived, in part, from the principles and rules set forth in treaties with non-Muslims. The 15th century witnessed a confluence of factors that contributed to an accelerated development of international law. Italian jurist Bartolus de Saxoferrato (1313–1357)

6765-477: The Constitution, over one hundred cases dealt with these issues, though the term conflict of laws was not yet used. The Constitution created a "plurilegal federal union" in which conflicts are inherently abundant, and as a result, American judges encounter conflicts cases far more often—about 5,000 per year as of the mid-2010s—and have accumulated far more experience in resolving them than anywhere else in

6888-740: The Greek concept of natural law , the Romans conceived of jus gentium as being universal. However, in contrast to modern international law, the Roman law of nations applied to relations with and between foreign individuals rather than among political units such as states. Beginning with the Spring and Autumn period of the eighth century BCE, China was divided into numerous states that were often at war with each other. Rules for diplomacy and treaty-making emerged, including notions regarding just grounds for war ,

7011-466: The ICJ has set a high bar for enforcement in the cases of Anglo-Norwegian Fisheries and North Sea Continental Shelf . There has been legal debate on this topic with the only prominent view on the length of time necessary to establish custom explained by Humphrey Waldock as varying "according to the nature of the case". The practice is not required to be followed universally by states, but there must be

7134-484: The State's constitution. In the United States, salient issues in the field of conflict of laws date back at least to the framing of the Constitution. There was concern, for example, about what body of law the newly created federal courts would apply when handling cases between parties from different states (a type of case specifically assigned to the federal courts ). Within the first two decades following ratification of

7257-573: The UDHR was drafted, although many countries in the Global South have led the development of human rights on the global stage in the intervening decades. International labour law is generally defined as "the substantive rules of law established at the international level and the procedural rules relating to their adoption and implementation". It operates primarily through the International Labor Organization (ILO),

7380-593: The UN Charter and operate under the UN Human Rights Council , where each global region is represented by elected member states. The Council is responsible for Universal Periodic Review , which requires each UN member state to review its human rights compliance every four years, and for special procedures, including the appointment of special rapporteurs , independent experts and working groups. The treaty-based procedure allows individuals to rely on

7503-444: The UN Charter or international treaties, although in practice there are no relevant matters in the UN Charter. The ICJ may also be asked by an international organisation to provide an advisory opinion on a legal question, which are generally considered non-binding but authoritative. Conflict of laws , also known as private international law, was originally concerned with choice of law , determining which nation's laws should govern

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7626-571: The United States, the minimum contacts rule derived from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution regulates the extent to which one state can exercise jurisdiction over people domiciled in other states, or occurrences that took place in other states. Courts faced with a choice of law issue have a two-stage process: Many contracts and other forms of legally binding agreement include

7749-434: The applicable law itself is domestic law. This is because, unlike public international law (better known simply as international law ), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which

7872-433: The authority of a legislature to pass laws covering certain conduct). Like all aspects of conflict of laws, this question is in the first instance resolved by domestic law, which may or may not incorporate relevant international treaties or other supranational legal concepts. That said, relative to the other two main subtopics of conflicts of law (enforcement of judgements, and choice of law, which are both discussed below),

7995-627: The choice as to whether or not to ratify and implement these standards. The secretariat of the ILO is the International Labour Office, which can be consulted by states to determine the meaning of a convention, which forms the ILO's case law. Although the Right to Organise Convention does not provide an explicit right to strike, this has been interpreted into the treaty through case law. The UN does not specifically focus on international labour law, although some of its treaties cover

8118-457: The common consent of these states" and this definition has been largely adopted by international legal scholars. There is a distinction between public and private international law ; the latter is concerned with whether national courts can claim jurisdiction over cases with a foreign element and the application of foreign judgments in domestic law, whereas public international law covers rules with an international origin. The difference between

8241-617: The competence of the organisation; and an administrative organ, to execute the decisions of the other organs and handle secretarial duties. International organisations will typically provide for their privileges and immunity in relation to its member states in their constitutional documents or in multilateral agreements, such as the Convention on the Privileges and Immunities of the United Nations . These organisations also have

8364-452: The concept and formation of nation-states. Elements of the naturalist and positivist schools were synthesised, notably by German philosopher Christian Wolff (1679–1754) and Swiss jurist Emer de Vattel (1714–1767), both of whom sought a middle-ground approach. During the 18th century, the positivist tradition gained broader acceptance, although the concept of natural rights remained influential in international politics, particularly through

8487-533: The conduct of warfare during the American Civil War , and is noted for codifying rules and articles of war adhered to by nations across the world, including the United Kingdom, Prussia, Serbia and Argentina. In the years that followed, numerous other treaties and bodies were created to regulate the conduct of states towards one another, including the Permanent Court of Arbitration in 1899, and

8610-486: The determination of rules of law". It was originally considered that the arrangement of the sources sequentially would suggest an implicit hierarchy of sources; however, the statute does not provide for a hierarchy and other academics have argued that therefore the sources must be equivalent. General principles of law have been defined in the Statute as "general principles of law recognized by civilized nations" but there

8733-408: The efficiency of the procedures themselves. Legal territory can be divided into four categories. There is territorial sovereignty which covers land and territorial sea, including the airspace above it and the subsoil below it, territory outside the sovereignty of any state, res nullius which is not yet within territorial sovereignty but is territory that is legally capable of being acquired by

8856-436: The exception of states who have been persistent objectors during the process of the custom being formed and special or local forms of customary law. The requirement for state practice relates to the practice, either through action or failure to act, of states in relation to other states or international organisations. There is no legal requirement for state practice to be uniform or for the practice to be long-running, although

8979-508: The extent that domestic law renders the treaty obligations enforceable). The term private international law comes from the private law / public law dichotomy in civil law systems . In this form of legal system, the term private international law does not imply an agreed upon international legal corpus , but rather refers to those portions of domestic private law that apply to international issues. Importantly, while conflict of laws generally deals with disputes of an international nature,

9102-511: The focus was on the relationship between states. As human rights have become more important on the global stage, being codified by the UN General Assembly (UNGA) in the Universal Declaration of Human Rights in 1948, individuals have been given the power to defend their rights to judicial bodies. International law is largely silent on the issue of nationality law with the exception of cases of dual nationality or where someone

9225-751: The implementation or integration of international legal obligations into domestic law. The modern term "international law" was originally coined by Jeremy Bentham in his 1789 book Introduction to the Principles of Morals and Legislation to replace the older law of nations, a direct translation of the late medieval concepts of ius gentium , used by Hugo Grotius , and droits des gens , used by Emer de Vattel . The definition of international law has been debated; Bentham referred specifically to relationships between states which has been criticised for its narrow scope. Lassa Oppenheim defined it in his treatise as "a law between sovereign and equal states based on

9348-428: The international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". Where customary or treaty law conflicts with a peremptory norm, it will be considered invalid, but there is no agreed definition of jus cogens . Academics have debated what principles are considered peremptory norms but

9471-574: The international legal system. The sources of international law applied by the community of nations are listed in Article 38(1) of the Statute of the International Court of Justice , which is considered authoritative in this regard. These categories are, in order, international treaties , customary international law , general legal principles and judicial decisions and the teachings of prominent legal scholars as "a subsidiary means for

9594-417: The key questions addressed within conflict of laws is the determination of when the legislature of a given jurisdiction may legislate, or the court of a given jurisdiction can properly adjudicate, regarding a matter that has extra-jurisdictional dimensions. This is known as jurisdiction (sometimes subdivided into adjudicative jurisdiction , the authority to hear a certain case, and prescriptive jurisdiction ,

9717-506: The law of war and towards the domains such as the law of the sea and commercial treaties. The positivist school grew more popular as it reflected accepted views of state sovereignty and was consistent with the empiricist approach to philosophy that was then gaining acceptance in Europe. The developments of the 17th century culminated at the conclusion of the Peace of Westphalia in 1648, which

9840-443: The laws of war and treaties. Francisco de Vitoria (1486–1546), who was concerned with the treatment of indigenous peoples by Spain, invoked the law of nations as a basis for their innate dignity and rights, articulating an early version of sovereign equality between peoples. Francisco Suárez (1548–1617) emphasised that international law was founded upon natural law and human positive law. Dutch jurist Hugo Grotius (1583–1645)

9963-647: The middle of the fourteenth century, a work that came to be cited repeatedly for the next several centuries. Later, in the seventeenth century, several Dutch legal scholars, including Christian Rodenburg , Paulus Voet , Johannes Voet , and Ulrik Huber , further expounded the jurisprudence of conflict of laws. Their key conceptual contributions were twofold: First, nations are wholly sovereign within their borders and therefore cannot be compelled to enforce foreign law in their own courts. Second, in order for international conflicts of law to work rationally, nations must exercise comity in enforcing others' laws, because it

10086-421: The most important and heavily debated topics in recent environmental law. The United Nations Framework Convention on Climate Change , intended to set out a framework for the mitigation of greenhouse gases and responses to resulting environmental changes, was introduced in 1992 and came into force two years later. As of 2023, 198 states were a party. Separate protocols have been introduced through conferences of

10209-461: The most just exercise of one State's authority is by recognizing the authority of another through the recognition and enforcement of another state's laws and judgments. Many states continue to recognize the principle of comity as the underpinning of private international law such as in Canada. In some countries, such as the United States of America and Australia, the principle of comity is written into

10332-427: The mostly widely agreed is the principle of non-use of force. The next year, the ICJ defined erga omnes obligations as those owed to "the international community as a whole", which included the illegality of genocide and human rights. There are generally two approaches to the relationship between international and national law, namely monism and dualism. Monism assumes that international and national law are part of

10455-512: The nation state, although some academics emphasise that it is distinct from either type of law. It was defined by Philip Jessup as "all law which regulates actions or events that transcend national frontiers". A more recent concept is supranational law , which was described in a 1969 paper as "[a] relatively new word in the vocabulary of politics". Systems of supranational law arise when nations explicitly cede their right to make decisions to this system's judiciary and legislature, which then have

10578-400: The naturalists and the positivists. In the former camp was German jurist Samuel von Pufendorf (1632–1694), who stressed the supremacy of the law of nature over states. His 1672 work, Of the Law of Nature and Nations, expanded on the theories of Grotius and grounded natural law to reason and the secular world, asserting that it regulated only external acts of states. Pufendorf challenged

10701-465: The nine primary human rights treaties: The regional human rights enforcement systems operate in Europe, Africa and the Americas through the European Court of Human Rights , the Inter-American Court of Human Rights and the African Court on Human and Peoples' Rights . International human rights has faced criticism for its Western focus, as many countries were subject to colonial rule at the time that

10824-640: The parties , including the Kyoto Protocol which was introduced in 1997 to set specific targets for greenhouse gas reduction and the 2015 Paris Agreement which set the goal of keeping global warming at least below 2 °C (3.6 °F) above pre-industrial levels. Individuals and organisations have some rights under international environmental law as the Aarhus Convention in 1998 set obligations on states to provide information and allow public input on these issues. However few disputes under

10947-475: The parties must be states, however international organisations are also considered to have the capacity to enter treaties. Treaties are binding through the principle of pacta sunt servanda , which allows states to create legal obligations on themselves through consent. The treaty must be governed by international law; however it will likely be interpreted by national courts. The VCLT, which codifies several bedrock principles of treaty interpretation, holds that

11070-405: The parties must sign to indicate acceptance of the wording but there is no requirement on a state to later ratify the treaty, although they may still be subject to certain obligations. When signing or ratifying a treaty, a state can make a unilateral statement to negate or amend certain legal provisions which can have one of three effects: the reserving state is bound by the treaty but the effects of

11193-484: The power to enter treaties, using the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations as a basis although it is not yet in force. They may also have the right to bring legal claims against states depending, as set out in Reparation for Injuries , where they have legal personality and the right to do so in their constitution. The UNSC has

11316-400: The power under Chapter VII of the UN Charter to take decisive and binding actions against states committing "a threat to the peace, breach of the peace, or an act of aggression" for collective security although prior to 1990, it has only intervened once, in the case of Korea in 1950. This power can only be exercised, however, where a majority of member states vote for it, as well as receiving

11439-417: The regimes set out in environmental agreements are referred to the ICJ, as the agreements tend to specify their compliance procedures. These procedures generally focus on encouraging the state to once again become compliant through recommendations but there is still uncertainty on how these procedures should operate and efforts have been made to regulate these processes although some worry that this will undercut

11562-415: The relevant provisions are precluded or changes, the reserving state is bound by the treaty but not the relevant provisions, or the reserving state is not bound by the treaty. An interpretive declaration is a separate process, where a state issues a unilateral statement to specify or clarify a treaty provision. This can affect the interpretation of the treaty but it is generally not legally binding. A state

11685-459: The republican revolutions of the United States and France. Until the mid-19th century, relations between states were dictated mostly by treaties, agreements between states to behave in a certain way, unenforceable except by force, and nonbinding except as matters of honour and faithfulness. One of the first instruments of modern armed conflict law was the Lieber Code of 1863, which governed

11808-483: The right to make laws that are directly effective in each member state. This has been described as "a level of international integration beyond mere intergovernmentalism yet still short of a federal system". The most common example of a supranational system is the European Union . With origins tracing back to antiquity , states have a long history of negotiating interstate agreements. An initial framework

11931-586: The rights of neutral parties, and the consolidation and partition of states; these concepts were sometimes applied to relations with barbarians along China's western periphery beyond the Central Plains . The subsequent Warring States period saw the development of two major schools of thought, Confucianism and Legalism , both of which held that the domestic and international legal spheres were closely interlinked, and sought to establish competing normative principles to guide foreign relations. Similarly,

12054-568: The same legal order. Therefore, a treaty can directly become part of national law without the need for enacting legislation, although they will generally need to be approved by the legislature. Once approved, the content of the treaty is considered as a law that has a higher status than national laws. Examples of countries with a monism approach are France and the Netherlands. The dualism approach considers that national and international law are two separate legal orders, so treaties are not granted

12177-403: The same topics. Many of the primary human rights conventions also form part of international labour law, providing protection in employment and against discrimination on the grounds of gender and race. It has been claimed that there is no concept of discrete international environmental law , with the general principles of international law instead being applied to these issues. Since the 1960s,

12300-652: The sea was primarily composed of customary law until the 20th century, beginning with the League of Nations Codification Conference in 1930, the UN Conference on the Law of the Sea and the adoption of the UNCLOS in 1982. The UNCLOS was particularly notable for making international courts and tribunals responsible for the law of the sea. Conflict of laws Conflict of laws (also called private international law )

12423-478: The sick and wounded. During the European Middle Ages , international law was concerned primarily with the purpose and legitimacy of war, seeking to determine what constituted "just war ". The Greco-Roman concept of natural law was combined with religious principles by Jewish philosopher Maimonides (1135–1204) and Christian theologian Thomas Aquinas (1225–1274) to create the new discipline of

12546-554: The six organs of the UN, based out of the Hague with a panel of fifteen permanent judges. It has jurisdiction to hear cases involving states but cannot get involved in disputes involving individuals or international organizations. The states that can bring cases must be party to the Statute of the ICJ , although in practice most states are UN members and would therefore be eligible. The court has jurisdiction over all cases that are referred to it and all matters specifically referred to in

12669-581: The sixteen involved states established a permanent institution for international collaboration on conflict-of-laws issues. The organization is known today as the Hague Conference on Private International Law (HCCH). As of December 2020 , HCCH includes eighty-six member states. As attention to the field became more widespread in the second half of the twentieth century, the European Union began to take action to harmonize conflict of laws jurisprudence across its member states. The first of these

12792-541: The state where the choice of law clause confers its competence. Oxford Professor Adrian Briggs suggests that this is doctrinally problematic as it is emblematic of 'pulling oneself up by the bootstraps'. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. This judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors; it also harms consumers as vendors often impose one-sided contractual terms selecting

12915-575: The support of the permanent five members of the UNSC. This can be followed up with economic sanctions, military action, and similar uses of force. The UNSC also has a wide discretion under Article 24, which grants "primary responsibility" for issues of international peace and security. The UNGA, concerned during the Cold War with the requirement that the USSR would have to authorise any UNSC action, adopted

13038-472: The teleological approach which interprets a treaty according to its objective and purpose. A state must express its consent to be bound by a treaty through signature, exchange of instruments, ratification, acceptance, approval or accession. Accession refers to a state choosing to become party to a treaty that it is unable to sign, such as when establishing a regional body. Where a treaty states that it will be enacted through ratification, acceptance or approval,

13161-402: The term private international law is commonly used. Some scholars from countries that use conflict of laws consider the term private international law confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; the calculus only includes international law when the nation has treaty obligations (and even then, only to

13284-679: The theory regarding jurisdiction has developed consistent international norms. This is perhaps because, unlike the other subtopics, jurisdiction relates to the particularly thorny question of when it is appropriate for a country to exercise its coercive power at all, rather that merely how it should do so. There are five bases of jurisdiction generally recognized in international law. These are not mutually exclusive; an individual or an occurrence may be subject to simultaneous jurisdiction in more than one place. They are as follows: Countries have also developed bodies of law for adjudicating jurisdiction disputes between subnational entities. For example, in

13407-675: The topic of conflict of laws arose from the First South American Congress of Private International Law , which was held in Montevideo from August 1888 to February 1889. The seven South American nations represented at the Montevideo conference agreed on eight treaties, which broadly adopted the ideas of Friedrich Carl von Savigny , determining applicable law on the basis of four types of factual relations (domicile, location of object, location of transaction, location of court). Soon after, European nations gathered for

13530-403: The treaty contradicts peremptory norms. Customary international law requires two elements: a consistent practice of states and the conviction of those states that the consistent practice is required by a legal obligation, referred to as opinio juris . Custom distinguishes itself from treaty law as it is binding on all states, regardless of whether they have participated in the practice, with

13653-469: The twelfth century. Prior to that, the prevailing system was that of personal law , in which the laws applicable to each individual were dictated by the group to which he or she belonged. Initially, the mode of this body of law was simply to determine which jurisdiction's law would be most fair to apply; over time, however, the law came to favor more well-defined rules. These rules were systematically summarized by law professor Bartolus de Saxoferrato in

13776-434: The two areas of law has been debated as scholars disagree about the nature of their relationship. Joseph Story , who originated the term "private international law", emphasised that it must be governed by the principles of public international law but other academics view them as separate bodies of law. Another term, transnational law, is sometimes used to refer to a body of both national and international rules that transcend

13899-468: The world, from the eastern Mediterranean to East Asia . In Ancient Greece , many early peace treaties were negotiated between its city-states and, occasionally, with neighbouring states. The Roman Empire established an early conceptual framework for international law, jus gentium , which governed the status of foreigners living in Rome and relations between foreigners and Roman citizens . Adopting

14022-462: The world. Alongside domestic developments relating to conflict of laws, the nineteenth century also saw the beginnings of substantial international collaboration in the field. The first international meeting on the topic took place in Lima in 1887 and 1888; delegates from five South American countries attended, but failed to produce an enforceable agreement. The first major multilateral agreements on

14145-590: Was among the earliest scholars to expand international law beyond European Christian nations, advocating for its application and recognition among all peoples on the basis of shared humanity. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands, argued that international law should derive from the actual practice of states rather than Christian or Greco-Roman sources. The study of international law shifted away from its core concern on

14268-567: Was based on the division of the world into three categories: the dar al-Islam , where Islamic law prevailed; the dar al-sulh , non-Islamic realms that concluded an armistice with a Muslim government; and the dar al-harb , non-Islamic lands which were contested through jihad . Islamic legal principles concerning military conduct served as precursors to modern international humanitarian law and institutionalised limitations on military conduct, including guidelines for commencing war, distinguishing between civilians and combatants and caring for

14391-757: Was conceptualised by the Ancient Romans and this idea of ius gentium has been used by various academics to establish the modern concept of international law. Among the earliest recorded examples are peace treaties between the Mesopotamian city-states of Lagash and Umma (approximately 3100 BCE), and an agreement between the Egyptian pharaoh , Ramesses II , and the Hittite king , Ḫattušili III , concluded in 1279 BCE. Interstate pacts and agreements were negotiated and agreed upon by polities across

14514-476: Was considered the founder of private international law . Another Italian jurist, Baldus de Ubaldis (1327–1400), provided commentaries and compilations of Roman, ecclesiastical, and feudal law , creating an organised source of law that could be referenced by different nations. Alberico Gentili (1552–1608) took a secular view to international law, authoring various books on issues in international law, notably Law of War , which provided comprehensive commentary on

14637-559: Was established in 1947 to develop and codify international law. In the 1940s through the 1970s, the dissolution of the Soviet bloc and decolonisation across the world resulted in the establishment of scores of newly independent states. As these former colonies became their own states, they adopted European views of international law. A flurry of institutions, ranging from the International Monetary Fund (IMF) and

14760-666: Was founded to safeguard peace and security. International law began to incorporate notions such as self-determination and human rights . The United Nations (UN) was established in 1945 to replace the League, with an aim of maintaining collective security. A more robust international legal order followed, buttressed by institutions such as the International Court of Justice (ICJ) and the UN Security Council (UNSC). The International Law Commission (ILC)

14883-470: Was originally an intention that a state must have self-determination , but now the requirement is for a stable political environment. The final requirement of being able to enter relations is commonly evidenced by independence and sovereignty. Under the principle of par in parem non habet imperium , all states are sovereign and equal, but state recognition often plays a significant role in political conceptions. A country may recognise another nation as

15006-717: Was the Brussels Convention agreed in 1968, which addressed questions of jurisdiction for cross-border cases. This was followed in 1980 by the Rome Convention , which addressed choice-of-law rules for contract disputes within EU member states. In 2009 and 2010, respectively, the EU enacted the Rome II Regulation to address choice-of-law in tort cases and the Rome III Regulation to address choice-of-law in divorce matters. One of

15129-557: Was the Central American Court of Justice , prior to World War I, when the Permanent Court of International Justice (PCIJ) was established. The PCIJ was replaced by the ICJ, which is the best known international court due to its universal scope in relation to geographical jurisdiction and subject matter . There are additionally a number of regional courts, including the Court of Justice of the European Union ,

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