The public international law governs the relations between the State S or the people or entities of different nationalities. The texts defining the International law are the treated S, the Convention S and the agreement S.

The international law can be divided into two categories: the public international law and the private International law . When one speaks simply about international law , it is usually about the public international law.

Traditionally, the only subjects of the international law are the States. But the proliferation of the international organizations since a hundred years made them recognize like subject of the international law.

The recent developments of the humane International law, the Human rights and the international Commercial law, make that the individuals and the firms are perceived more and more like subjects of international law, a situation which goes against traditional legal orthodoxy. Since the international law governs in an increasing way much more than the simple relations between Sovereign states, it would be necessary can be to define it as right adoptee and steady to the international level, in opposition to the national level.

Historical origins

If the public international law is mainly a modern creation, one finds bonds legal international at older times.

Antiquity

If the relations between States are especially controls by the force in Antiquity, the right starts to find its place in the international relations. One of the first international treaties is the peace treaty which signed the Egyptian Pharaon Ramsès II with the king of the Hittites towards -1300. This treaty had in particular as an aim the extradition of the " refugees politique" as well as an agreement of non-aggression and rested on the beliefs of the various gods from each part.

The Greek cities fix rules relating to the prisoner of war salary and join to jointly manage particular functions such as the management of the sanctuary of Delphes.

The Roman , with Gaius, conceive the juice gentium as a right which applies to the whole of humanity. It is not a question however public international law such as one conceives it today, because it relates to the treatment and the protection from abroad on the national ground.

The Middle Ages

The European Middle Ages are opposed in a fundamental way at the time modern by its design organist of a Christian community and not of a juxtaposition of Sovereign states and equal. However, after the year 1000, the international relations develop and require the development of rules: trade flows, exchange of embassies. The war, just against the infidels, must be avoided between Christians; its practice is softened by standards such as the Truce of God.

Rebirth and modern time

Among the principal personalities which contributed to the formation of the international law, one can quote:
  • Francesco Vittoria (1483 - 1546), which was interested in the situation resulting from discovered from America
  • Francisco Suárez (1548 - 1617), which introduces the principles according to which the moral base of the international community is the Christian Charité, authority of the State being limited by the Morale and the Droit.
  • Hugo Grotius (1583 - 1645), which is that which undoubtedly influenced the contemporary international law the most. It exposes in a systematic way the principles of the international law. It distinguishes the natural Right (common direction of humanity) and the voluntary right ( juice gentium ), that which received obligatory force of the will of all the nations or several of them.

One can also quote Albericus Gentili, Emer de Vattel and Samuel von Pufendorf.

The components of the modern state are set up, in particular in England and France: to be able organized related at an institution and not to the person even of her holder, population, territory. Coexistence of the States, forced to cooperate, the authors deduce the need for respecting the treaties ( Pacta sunt servanda ). The war remains however possible for authors such as Grotius.

The Traité of Westphalia recognizes in 1648 the equality of the sovereign nations of Europe, basic principle of the modern international law.

Subjects of the international law

A subject of international law is fixed with this right and must be able to be prevailed about it. In the beginning the State was the only subject of the international law. (According to Kelsen: “the only subject of the international law is the State”).

April 11th, 1949 opinion of the the International Court of Justice: “The subjects of right in a legal system are not necessarily identical as for their nature or as for the extent of their right and their nature depends on the needs for the community”.

But this design is completed, because although surely original subject, since 1815, the states felt the need for grouping in International organizations which little by little will reach the statute of subjects. UNO became a subject of international law, then that extended to the other international organizations (= prone of derived right).

The individual took an increasingly important place in the system of international law because of protection of the human rights.

  • the State in international law

  • the International organizations
  • individuals in international law

Sources of the international law

The international company is primarily decentralized. The capacities of creation of the right and application of the right do not belong to a centralized entity. There is no world State, and the main subjects of right are also the principal creators of the right.

The international law has three primary sources: international treaties, the habit and general principles of the right.

  • the international law of the treaties includes/understands the obligations which the States accept expressly and voluntarily by means of treaties. When a convention is drawn up, a State can give its assent to the text (which becomes to him opposable then). It becomes “part” with convention. It can also grant its assent to most of the text, but exclude certain provisions from them. One speaks then about “reserve”.

  • the usual international law derives from an effective practice of the States accompanied by the opinio juris , i.e. the conviction of the States that this practice is required by the law.
  • the general principles of the right are commonly recognized by the principal legal systems throughout the world.

It would be necessary to add to these 3 sources mentioned for article 38 of the statute of the CIJ:

  • unilateral declarations: it is the International Court of Justice which conferred a statute of source of right to the official declarations made by the governments, for example in press conference in the business of the test of the nuclear missiles.

The doctrines and jurisprudence constitute also 2 secondary sources of international law.

Creation of an international treaty

The creation of an international treaty passes by the three following ways which are cumulative conditions:
  • the negotiation : the States are represented by the plenipotentiary ones, individuals who are equipped with the full powerss to be able to negotiate. Example: Foreign Minister, the president of the Republic;
  • the signature : in general with the ministerial row (Minister for the Culture or other), in general it is a paraph and not a signature. On this level, the State is still not committed; except if it is about a treaty in simplified form.
  • the ratification : it is made by the Parliament, by a law of ratification. The text between then into force, and the State is engaged to respect the text.
  • adhesion: It relates to logically only the multilateral treaties. It shows the same characteristics as the adoption of a treaty by the traditional procedure of the double degree (that is to say signature and ratification) to the difference close the State signatory has already obligations and rights starting from its signature.

The relation between the international law and the internal rights

The coexistence of the international law and the internal rights raises the question of their possible hierarchical report/ratio: does one of the two standards have to take precedence over the other? Two theoretical positions are:

  • the position monist : the rules of the international law and the rules of the internal rights are assembled in a single legal order organized according to the principles of the pyramidal organization of the standards theorized by Hans Kelsen. This organization can take the figure of a domination of the international law on the internal rights or, on the contrary, subordinate the international law with the internal rights or certain internal standards such as the national Constitution.
  • the dualistic position , postulated by Heinrich Triepel and Dionisio Anzilotti: the international law and the internal rights form two distinct legal orders, without relation of subordination of back the other. Separation is possible because one has as a subject the States and the international organizations, while the other concerns only the individuals.

Thus, in Italy the signed and ratified international treaties must be formally shown by an internal law (dualism) and thus have the authority of the law which integrated them in the internal legal order. In France, on the other hand, the treaties are applicable as of their ratification (monism): they have a specific position, which is in fact higher than the internal laws.

In practice, it is necessary to consider the multiplicity of the levels of the internal rights and the duality of the jurisdictions: international and national. Several solutions result from this.

The point of view of the international institutions

In a constant way, the courts and courses of international arbitration consider that no State cannot call upon an internal legal provision to be withdrawn from its international obligations, which specifies the convention of Vienna of 1969 (article 27). The international law thus is essential on the State, even if a legal provision interns is contradictory for him. That does not mean that the international judge can cancel an internal legal provision. It is satisfied to make it ineffective when it produces effects on the international plan.

Thus, in the Nottebohm business, the International Court of Justice declared that the authorities of Guatemala could regard as German a citizen of this State which had just acquired the nationality of Liechtenstein, considering that this new nationality was not effective. By doing this, the Court did not withdraw with Mr. Nottebohm the nationality of Liechtenstein and thus did not cancel standards or acts emitted by this country, but was satisfied to make it incontestable to another country, in fact Guatemala.

The international jurisdictions base their decisions only on the international law. They are not considered dependant by the internal rights of the States concerned, including at the constitutional level, which constitutes only one element of appreciation among others.

The point of view of the States and the internal jurisdictions

The practices vary according to the level of standard considered (Constitution, Loi, habit) and the mode: primacy of the international rule, including compared to a later internal law, or simple recognition with equality with the internal standard.

International law and the internal law

In general, the States recognize the applicability of the international law in internal order. Thus the rule Pacta sunt servanda is registered in the Preamble with the French Constitution of 1946, which is always a constitutional requirement: “The French Republic, faithful to its traditions, conforms to the rules of the international right public”, formulation which includes the international habit. The treaties must however be ratified or approved, published and applied by the other part (article 55 of the Constitution of 1958). In Germany and Italy, the international habit is also applicable directly, but it should be promulgated a law so that a treaty between into force. The difference between the Ratification in a case and the Promulgation in a law in the other is at the level of the force of the standard. In France, the treaties have a force higher than the law: jurisprudence recognized gradually that they took precedence even over a law promulgated subsequently to their ratification. In Germany and Italy, on the other hand, the treaty has only one value equal to the law and could be repealed by a simple law in theory.

In England, the international law, in particular usual, applies under the terms of the doctrines of Blackstone (1765). However the internal rights carry it in the event of conflict. So certain treaties apply directly, one needed a law to integrate in 1998 the European Convention of the human rights in the English right ( Human Rights Act ). With the the United States, the treaties with the precise and unconditional provisions are higher than the former laws, but their report/ratio with the posterior laws depends on the will expressed by the Congress.

International law and the Constitution

The report/ratio of the treaties and the Constitution is complex. Both are indeed higher than the law. In France, the jurisprudence of the Council of State affirms that the Constitution must apply in internal rights whatever the treaties signed by France. However, the Constitutional council estimates today that it is not necessary to check conformity with the Constitution of the derived Community legislation, which is the subject of clean rules.

Off-shore application of the right of a State

The off-shore application of the American right was in particular concretized through the laws Damato and Helms-Burton: laws of embargo on Cuba, Libya and Iran. Thus by the extraterritorialisation of these laws any company investing in these countries which is American or not could be condemned by American justice. August 1st

The information paper deposited by the Delegation of the National Assembly for the European Union on the economic relations between the European Union and the United States (February 11th 1999) raises questions about the off-shore application of the right of the United States.

Limits of the international law

The international law is distinguished from the national rights by the absence of a centralized structure charged to make respect its application. The absence of international gendarme led certain authors to doubt that the international law is truly Droit. There exist however several courts of justice international, as certain courts of arbitration ad hoc which apply the international law. One thinks mainly of the the International Court of Justice (CIJ). However, so that the Court can settle a disagreement, both State S left with the litigation must have expressly accepted the jurisdiction of the court (this acceptance is still indicated under the term optional Clause of jurisdiction, which must be included/understood well compared to the Arbitration clause). That can be done by several means, in particular the signature of an agreement after the supervening of the litigation, by a declaration of acceptance of the jurisdiction of the court contained in a treaty or by a declaration of acceptance of the general competence of the court. However these declarations of acceptance of general competence are rather rare and very often subjugated with many reserves. Among the members of the safety advice, only Great Britain signed such a declaration (the United States withdrew theirs after the business of countered with the Nicaragua, France after the business of the nuclear tests). The application of a convention thus depends mainly on the good will of the States bound by this one.

In the event of international disagreement, there exist several methods of peaceful resolution of the disagreements. That can go from the negotiation, with the mediation, arbitration, until the sasine of the CIJ. These modes of payment can possibly lead to the application of measures of Rétorsion by a State. However, this right is not necessarily guaranteed. In the event of refusal to carry out a stop of the CIJ for example, the injured State must initially seize the Safety advice.

With regard to the international criminal law, completely distinct from the inter-official international law, the Statut of Rome has creates the International penal court for the case of the crimes against humanity.

It is quite obvious that retaliatory measures imposed by a powerful State will be more effective than those of a weaker State of political or economic importance. Thus, in practice, only the strong States are truly able to make respect conventions which they signed. The concept of Rule of law thus does not apply fully to the international relations.

Under these conditions, it could seem that the international law is only one disguise of the law of the strongest . However, one should not neglect the weight of the diplomatic relations and the importance for the States of their image in the world. Except exception, the States have advantage to respect their obligations.

In the States which have a system of positive Droit extremely, the international law figure in the Bloc of conventionnality of the Pyramide of the standards, beside the European Droit (in Europe) and of the organic laws. It depends on the constitutional Law which appears in the Bloc of constitutionality, and thus is essential in theory on the Loi S, which are on a lower level of the Hiérarchie of the standards.

Some lawyers specialists in the international law

See too

Related articles

External bonds

  • To denounce an international treaty
  • It self-defense in international law
  • AIDE-RIDE: Association & International Review of Economic right

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