https://www.britannica.com/topic/international-law
International law, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term was coined by the English philosopher Jeremy Bentham (1748–1832).
The nature and development of
international law
Definition
and scope
According
to Bentham’s classic definition, international law is a collection of rules governing relations between
states. It is a mark of how far international law has evolved that this
original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international
law. Furthermore, it is no longer accurate to view international law as simply
a collection of rules; rather, it is a rapidly developing complex of rules and
influential—though not directly binding—principles, practices, and assertions
coupled with increasingly sophisticated structures and processes. In its
broadest sense, international law provides normative guidelines as well as
methods, mechanisms, and a common conceptual language to international actors—i.e.,
primarily sovereign states but also increasingly international organizations
and some individuals. The range of subjects and actors directly concerned with
international law has widened considerably, moving beyond the classical
questions of war, peace, and diplomacy to include human rights, economic and trade issues, space law, and international organizations. Although
international law is a legal order and not an ethical one, it has been influenced significantly by
ethical principles and concerns, particularly in the sphere of human rights.
International law is distinct
from international
comity, which comprises legally
nonbinding practices adopted by states for reasons of courtesy (e.g., the
saluting of the flags of foreign warships at sea). In addition, the study of
international law, or public international law, is distinguished from the field
of conflict of laws,
or private international law, which is concerned with the rules of municipal
law—as international lawyers term the domestic law of states—of different
countries where foreign elements are involved.
International law is an independent system of law existing
outside the legal orders of particular states. It differs from domestic legal
systems in a number of respects. For example, although the United Nations (UN)
General Assembly, which consists of representatives of some 190 countries, has
the outward appearances of a legislature, it has no power to issue binding
laws. Rather, its resolutions serve only as recommendations—except in specific
cases and for certain purposes within the UN system, such as determining the UN
budget, admitting new members of the UN, and, with the involvement of the Security Council,
electing new judges to the International Court of
Justice (ICJ). Also, there is no system of courts with comprehensive jurisdiction
in international law. The ICJ’s jurisdiction in contentious cases is
founded upon the consent of the particular states involved. There is no
international police force or comprehensive system of law enforcement, and
there also is no supreme executive authority. The UN Security Council may
authorize the use of force to compel states to comply with its decisions, but
only in specific and limited circumstances; essentially, there must be a prior
act of aggression or
the threat of such an act. Moreover, any such enforcement action can be vetoed
by any of the council’s five permanent members (China, France, Russia, the
United Kingdom, and the United States). Because there is no standing UN
military, the forces involved must be assembled from member states on an ad hoc basis.
International law is a distinctive part of the general structure of international relations. In contemplating responses to a particular international situation, states usually consider relevant international laws. Although considerable attention is invariably focused on violations of international law, states generally are careful to ensure that their actions conform to the rules and principles of international law, because acting otherwise would be regarded negatively by the international community. The rules of international law are rarely enforced by military means or even by the use of economic sanctions. Instead, the system is sustained by reciprocity or a sense of enlightened self-interest. States that breach international rules suffer a decline in credibility that may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its advantage may induce other states to breach other treaties and thereby cause harm to the original violator. Furthermore, it is generally realized that consistent rule violations would jeopardize the value that the system brings to the community of states, international organizations, and other actors. This value consists in the certainty, predictability, and sense of common purpose in international affairs that derives from the existence of a set of rules accepted by all international actors. International law also provides a framework and a set of procedures for international interaction, as well as a common set of concepts for understanding it.
Historical development
International law reflects the establishment and subsequent modification
of a world system founded almost exclusively on the notion that
independent sovereign states
are the only relevant actors in the international system. The essential
structure of international law was mapped out during the European Renaissance, though its
origins lay deep in history and can be traced to cooperative agreements between
peoples in the ancient Middle East.
Among the earliest of these agreements were a treaty between the
rulers of Lagash and
Umma (in the area of Mesopotamia) in approximately 2100 BCE and
an agreement between the Egyptian pharaoh Ramses II and Hattusilis III,
the king of the Hittites, concluded in 1258 BCE. A number of pacts were
subsequently negotiated by various Middle Eastern empires. The long and rich
cultural traditions of ancient Israel, the Indian subcontinent,
and China were also vital in the development of international law. In addition,
basic notions of governance, of political relations, and of the interaction of
independent units provided by ancient Greek political philosophy and the
relations between the Greek city-states constituted important
sources for the evolution of the international legal system.
Many of the concepts that today
underpin the international legal order were established during the Roman Empire. The jus
gentium (Latin: “law of nations”), for example, was
invented by the Romans to govern the status of foreigners and the relations
between foreigners and Roman citizens. In accord with the Greek concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In the Middle Ages, the concept of natural law, infused with religious
principles through the writings of the Jewish philosopher Moses
Maimonides (1135–1204) and the theologian St. Thomas
Aquinas (1224/25–1274), became the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural
law that applied to the relations between sovereign states.
After the collapse of the
western Roman Empire in the 5th century CE, Europe suffered from frequent warring for nearly 500 years.
Eventually, a group of nation-states emerged, and a number of supranational sets of rules
were developed to govern interstate relations, including canon law, the law
merchant (which governed trade), and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island
off the west coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic
League until 1361. In the 15th century the arrival
of Greek scholars in Europe from the collapsing Byzantine
Empire and the introduction of the printing
press spurred the development of scientific,
humanistic, and individualist thought, while the expansion of ocean navigation
by European explorers spread European norms throughout the world and broadened
the intellectual and geographic horizons of western Europe. The subsequent
consolidation of European states with increasing wealth and ambitions, coupled
with the growth in trade, necessitated the establishment of a set of rules to
regulate their relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the
person of the king and was later transformed into a principle of collective sovereignty as the divine
right of kings gave way constitutionally to parliamentary
or representative forms of government. Sovereignty also acquired an external
meaning, referring to independence within a system of competing nation-states.
Early writers who dealt with
questions of governance and relations between nations included the Italian
lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of
the modern study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher,
papal adviser, and authority on Roman and feudal law. The essence of the new
approach, however, can be more directly traced to the philosophers of the
Spanish Golden
Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–1546), who was particularly concerned with the
treatment of the indigenous peoples of South America by the conquering Spanish forces, and Francisco
Suárez (1548–1617) emphasized that international
law was founded upon the law of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of the secular school of thought in international law, published De jure belli libri tres (1598; Three Books on the Law
of War), which contained a comprehensive discussion of the laws of war and treaties. Gentili’s
work initiated a transformation of the law of nature from a theological concept
to a concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the development of the field
to an extent unequaled by any other theorist, though his reputation as the
father of international law has perhaps been exaggerated. Grotius excised
theology from international law and organized it into a comprehensive system,
especially in De Jure Belli ac Pacis (1625; On the Law of War and
Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained acceptance among the northern
European powers that were embarking upon extensive missions of exploration and
colonization around the world.
The scholars who followed
Grotius can be grouped into two schools, the naturalists and the positivists.
The former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of the law of
nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743) in the Netherlands, emphasized
the actual practice of contemporary states over concepts derived from biblical
sources, Greek thought, or Roman law. These new writings also focused greater
attention on the law of peace and the conduct of interstate relations than on
the law of war, as the focus of international law shifted away from the
conditions necessary to justify the resort to force in order to deal with
increasingly sophisticated interstate relations in areas such as the law of the
sea and commercial treaties. The positivist school made use of the new scientific
method and was in that respect consistent with the
empiricist and inductive approach to philosophy that was then gaining
acceptance in Europe. Elements of both positivism and natural law appear in the
works of the German philosopher Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to develop an
approach that avoided the extremes of each school. During the 18th century, the
naturalist school was gradually eclipsed by the positivist tradition, though,
at the same time, the concept of natural rights—which played a prominent role
in the American and French revolutions—was becoming a vital element in
international politics. In international law, however, the concept of natural
rights had only marginal significance until the 20th century.
Positivism’s influence peaked
during the expansionist and industrial 19th century, when the notion of state
sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the
affairs of other states—ideas that had been spread throughout the world by the
European imperial powers. In the 20th century, however, positivism’s dominance
in international law was undermined by the impact of two world wars, the
resulting growth of international organizations—e.g., the League of Nations, founded in 1919, and the UN, founded in 1945—and the increasing importance of human rights. Having become geographically international through the
colonial expansion of the European powers, international law became truly
international in the first decades after World War II, when decolonization resulted in the establishment of scores of newly
independent states. The varying political and economic interests and needs of
these states, along with their diverse cultural backgrounds, infused the hitherto
European-dominated principles and practices of international law with new
influences.
The development of
international law—both its rules and its institutions—is inevitably shaped by
international political events. From the end of World War II until the 1990s,
most events that threatened international peace and security were connected to the Cold War between the Soviet Union and
its allies and the U.S.-led Western alliance.
The UN Security Council was unable to function as intended, because resolutions
proposed by one side were likely to be vetoed by the other. The bipolar system
of alliances prompted the development of regional organizations—e.g., the Warsaw Pact organized
by the Soviet Union and the North
Atlantic Treaty Organization (NATO) established by the United
States—and encouraged the proliferation of conflicts on the peripheries of the two
blocs, including in Korea, Vietnam, and Berlin. Furthermore, the development of
norms for protecting human rights proceeded unevenly, slowed by sharp
ideological divisions.
The Cold War also gave rise to the coalescence of a group of
nonaligned and often newly decolonized states, the so-called “Third World,” whose support
was eagerly sought by both the United States and
the Soviet Union. The developing world’s increased prominence focused attention
upon the interests of those states, particularly as they related to
decolonization, racial discrimination, and economic
aid. It also fostered greater universalism in international politics and
international law. The ICJ’s
statute, for example, declared that the organization of the court must reflect
the main forms of civilization and the principal legal systems of the world.
Similarly, an informal agreement among members of the UN requires that
nonpermanent seats on the Security Council be apportioned to ensure equitable
regional representation; 5 of the 10 seats have regularly gone to Africa or
Asia, two to Latin
America, and the remainder to Europe or other states. Other UN
organs are structured in a similar fashion.
The collapse
of the Soviet Union and the end of the Cold War in the early
1990s increased political cooperation between the United States and Russia and
their allies across the Northern Hemisphere, but tensions also increased
between states of the north and those of the south, especially on issues such
as trade, human rights, and the law of the sea.
Technology and globalization—the
rapidly escalating growth in the international movement in goods, services,
currency, information, and persons—also became significant forces, spurring
international cooperation and somewhat reducing the ideological barriers that
divided the world, though globalization also led to
increasing trade tensions between allies such as the United States and the European Union (EU).
Since the 1980s, globalization has increased the number and
sphere of influence of international and regional organizations and required
the expansion of international law to cover the rights and obligations of these
actors. Because of its complexity and the sheer number of actors it affects,
new international law is now frequently created through processes that require
near-universal consensus. In the area of the environment,
for example, bilateral negotiations have been supplemented—and in some cases
replaced—by multilateral ones, transmuting the process of individual state
consent into community acceptance.
Various environmental agreements and the Law of the Sea treaty
(1982) have been negotiated through this consensus-building process.
International law as a system is complex. Although in principle it is
“horizontal,” in the sense of being founded upon the concept of the equality of
states—one of the basic principles of international law—in reality some states
continue to be more important than others in creating and maintaining
international law.
International law and municipal law
In
principle, international law operates only at the international level and not
within domestic legal systems—a perspective consistent with positivism, which
recognizes international law and municipal law as distinct and independent
systems. Conversely, advocates of natural law maintain
that municipal and international law form a single legal system, an approach
sometimes referred to as monism. Such a system, according to monists, may
arise either out of a unified ethical approach
emphasizing universal human rights or
out of a formalistic, hierarchical approach positing the existence of one
fundamental norm underpinning both international law and municipal law.
A principle recognized both in international case law (e.g., the Alabama claims case
between the United States and the United Kingdom following the American Civil
War) and in treaties (e.g., Article 27 of the 1969 Vienna Convention on the Law
of Treaties) is that no municipal rule may be relied upon as a justification
for violating international law. The position of international law within
municipal law is more complex and depends upon a country’s domestic
legislation. In particular, treaties must be distinguished from customary
international law. Treaties are written agreements that are signed and ratified
by the parties and binding on them. Customary international law consists of
those rules that have arisen as a consequence of
practices engaged in by states.
The Constitution of the United States stipulates (Article VI, Section 2) that treaties “shall be the supreme Law of the Land.” Treaties are
negotiated by the president but can be ratified only with the approval of
two-thirds of the Senate (Article II)—except in the case of executive
agreements, which are made by the president on his own
authority. Further, a treaty may be either self-executing or non-self-executing, depending upon whether
domestic legislation must be enacted in order for the treaty to enter into
force. In the United States, self-executing treaties apply directly as part of
the supreme law of the land without the need for further action. Whether a
treaty is deemed to be self-executing depends upon the intention of the signatories and the interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the California Supreme Court held
that the UN Charter was not self-executing because its relevant principles
concerning human rights lacked the mandatory quality and certainty required to
create justiciable rights for private persons upon its ratification; since then
the ruling has been consistently applied by other courts in the United States.
In contrast, customary international law was interpreted as part of federal law
in the Paquette Habana case (1900), in which the U.S. Supreme Court ruled that
international law forbade the U.S. Navy from selling, as prizes of war, Cuban
fishing vessels it had seized. Domestic legislation is supreme in the United States even if it breaches international law, though the government may be held
liable for such a breach at the international level. In order to mitigate such a possibility, there is a presumption that the U.S. Congress will not legislate contrary to the country’s
international obligations.
The United Kingdom takes an incorporationist view, holding that customary
international law forms part of the common law. British law, however, views treaties as purely executive,
rather than legislative, acts. Thus, a treaty becomes part of domestic law only
if relevant legislation is adopted. The same principle applies in other
countries where the English common law has been accepted (e.g., the majority of Commonwealth states and Israel). Although the
incorporationist view regards customary law as part of the law of the land and presumes that
municipal laws should not be inconsistent with international law, municipal
laws take precedence over international law in cases of conflict. Those
common-law countries that have adopted a written constitution generally have
taken slightly different positions on the incorporation of international law
into municipal law. Ireland’s constitution, for example, states that the
country will not be bound by any treaty involving public funds without the
consent of the national legislature, and in Cyprus treaties concluded in
accordance with its constitution have a status superior to municipal law on the
condition of reciprocity.
In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between municipal and international law varies, and the status of an international treaty within domestic law is determined by the country’s constitutional provisions. In federal systems, the application of international law is complex, and the rules of international law are generally deemed to be part of the federal law. Although a treaty generally becomes operative only when it has been ratified by a national legislature, EU countries have agreed that regulations and decisions emanating from EU institutions are directly applicable and enforceable without the need for enabling legislation—except for legislation permitting this form of lawmaking, which is adopted upon the country’s entry into the union (e.g., Britain’s adoption of the European Communities Act in 1972).
Sources of international law
Article 38 (1) of the ICJ’s
statute identifies three sources of international law: treaties, custom, and
general principles. Because the system of international law is horizontal and
decentralized, the creation of international laws is inevitably more
complicated than the creation of laws in domestic systems.
Treaties are known by a variety of terms—conventions, agreements, pacts,
general acts, charters, and covenants—all of which signify written instruments
in which the participants (usually but not always states) agree to be bound by
the negotiated terms. Some agreements are governed by municipal law (e.g.,
commercial accords between states and international enterprises), in which case
international law is inapplicable. Informal, nonbinding political statements or
declarations are excluded from
the category of treaties.
Treaties may be bilateral or multilateral.
Treaties with a number of parties are more likely to have international
significance, though many of the most important treaties (e.g., those emanating
from Strategic
Arms Limitation Talks) have been bilateral. A number of contemporary
treaties, such as the Geneva
Conventions (1949) and the Law of the Sea treaty
(1982; formally the United Nations Convention
on the Law of the Sea), have more than 150 parties to them, reflecting both
their importance and the evolution of the treaty as a method of general
legislation in international law. Other significant treaties include the
Convention on the Prevention and Punishment of the Crime of Genocide (1948),
the Vienna Convention on Diplomatic Relations (1961), the Antarctic
Treaty (1959), and the Rome Statute establishing the International
Criminal Court (1998). Whereas some treaties create
international organizations and provide their constitutions (e.g., the UN
Charter of 1945), others deal with more mundane issues (e.g., visa regulations, travel
arrangements, and bilateral economic assistance).
Countries that do not sign and ratify a treaty are not bound
by its provisions. Nevertheless, treaty provisions may form the basis of an
international custom in certain circumstances, provided that the provision in
question is capable of such generalization or is “of a fundamentally
norm-creating character,” as the ICJ termed the process in the North Sea Continental Shelf cases (1969). A treaty is based on the
consent of the parties to it, is binding, and must be executed in good
faith. The concept known by the Latin formula pacta sunt servanda (“agreements must be
kept”) is arguably the oldest principle of international law. Without such a
rule, no international
agreement would be binding or enforceable. Pacta sunt servanda is directly referred to in many international agreements
governing treaties, including the Vienna Convention on
the Law of Treaties (1969), which concerns treaties between
states, and the Vienna Convention on the Law of Treaties
Between States and International Organizations or Between International
Organizations (1986).
There is no
prescribed form or procedure for making or concluding treaties. They may be
drafted between heads of state or between government departments. The most
crucial element in the conclusion of a treaty is the signaling of the state’s
consent, which may be done by signature, an exchange of instruments,
ratification, or accession. Ratification is the usual method of declaring
consent—unless the agreement is a low-level one, in which case a signature is
usually sufficient. Ratification procedures vary, depending on the country’s
constitutional structure.
Treaties may allow signatories to opt out of a particular
provision, a tactic that enables countries that accept the basic principles of
a treaty to become a party to it even though they may have concerns about peripheral issues. These
concerns are referred to as “reservations,”
which are distinguished from interpretative declarations, which have no binding
effect. States may make reservations to a treaty where the treaty does not
prevent doing so and provided that the reservation is not incompatible with the
treaty’s object and purpose. Other states may accept or object to such
reservations. In the former case, the treaty as modified by the terms of the
reservations comes into force between the states concerned. In the latter case,
the treaty comes into force between the states concerned except for the
provisions to which the reservations relate and to the extent of the
reservations. An obvious defect of this system is that each government
determines whether the reservations are permissible, and there can be disagreement
regarding the legal consequences if a reservation is deemed impermissible.
A set of rules to interpret treaties has evolved. A treaty is
expected to be interpreted in good faith and in accordance with the ordinary
meanings of its terms, given the context, object, and purpose of the treaty.
Supplementary means of interpretation, including the use of travaux préparatoires (French: “preparatory works”) and consideration of the
circumstances surrounding the conclusion of the treaty, may be used when the
treaty’s text is ambiguous. In certain cases, a
more flexible method of treaty interpretation, based on the principle of
effectiveness (i.e., an interpretation that would not allow the provision in
question to be rendered useless) coupled with a broader-purposes approach (i.e., taking into account the
basic purposes of the treaty in interpreting a particular provision), has been
adopted. Where the treaty is also the constitutional document of an international
organization, a more programmatic or purpose-oriented approach is used in order to assist the
organization in coping with change. A purpose-oriented approach also has been
deemed appropriate for what have
been described as “living
instruments,” such as human rights treaties that establish an implementation
system; in the case of the European Convention on
Human Rights of 1950, this approach has allowed the
criminalization of homosexuality to
be regarded as a violation of human rights in the contemporary period despite
the fact that it was the norm when the treaty itself was signed.
A treaty may be
terminated or suspended in accordance with one of its provisions (if any exist)
or by the consent of the parties. If neither is the case, other provisions may
become relevant. If a material breach of a bilateral treaty occurs, the innocent
party may invoke that breach as a
ground for terminating the treaty or suspending its operation. The termination
of multilateral treaties is more complex. By unanimous agreement, all the
parties may terminate or suspend the treaty in whole or in part, and a party specially
affected by a breach may suspend the agreement between itself and the defaulting state. Any
other party may suspend either the entire agreement or part of it in cases
where the treaty is such that a material breach will radically change the
position of every party with regard to its obligations under the treaty. The
ICJ, for example, issued an advisory
opinion in 1971 that regarded as legitimate the General
Assembly’s termination of the mandate for South West Africa.
A breach of a treaty is generally regarded as material if there is an
impermissible repudiation of the treaty or if there is a violation of a
provision essential to the treaty’s object or purpose.
The concept of rebus sic stantibus (Latin: “things
standing thus”) stipulates that, where there has been a fundamental change of
circumstances, a party may withdraw from or terminate the treaty in question.
An obvious example would be one in which a relevant island has become submerged.
A fundamental change of circumstances, however, is not sufficient for
termination or withdrawal unless the existence of the original circumstances
was an essential basis of the consent of the parties to be bound by the treaty
and the change radically transforms the extent of obligations still to be
performed. This exception does not apply if the treaty establishes a boundary
or if the fundamental change is the result of a breach by the party invoking it of an obligation under the treaty or
of any other international obligation owed to any other party to the treaty.
The ICJ’s statute
refers to “international custom, as evidence of a general practice accepted
as law,” as a second
source of international law. Custom, whose importance reflects the
decentralized nature of the international system, involves two fundamental
elements: the actual practice of states and the acceptance by states of that
practice as law. The actual practice of states (termed the “material fact”)
covers various elements, including the duration, consistency, repetition, and
generality of a particular kind of behaviour by states. All such elements are
relevant in determining whether a practice may form the basis of a binding
international custom. The ICJ has required that practices amount to a “constant
and uniform usage” or be “extensive and virtually uniform” to be considered
binding. Although all states may contribute to the development of a new or
modified custom, they are not all equal in the process. The major states
generally possess a greater significance in the establishment of customs. For
example, during the 1960s the United States and
the Soviet Union played
a far more crucial role in the development of customs relating to space law than did
the states that had little or no practice in this area. After a practice has
been established, a second element converts a mere usage into a binding
custom—the practice must be accepted as opinio juris sive necessitatis (Latin:
“opinion that an act is necessary by rule of law”). In the North Sea
Continental Shelf cases, the ICJ stated that the practice in question
must have “occurred in such a way as to show a general recognition that a rule of law or
legal obligation is involved.”
Once a practice becomes a custom, all states in the
international community are
bound by it whether or not individual states have expressly consented—except in
cases where a state has objected from the start of the custom, a stringent test
to demonstrate. A particular practice may be restricted to a specified group of
states (e.g., the Latin American states) or even to two states, in which cases
the standard for acceptance as a custom is generally high. Customs can develop
from a generalizable treaty provision,
and a binding customary rule and a multilateral treaty provision on the same
subject matter (e.g., the right to self-defense) may exist at the same time.
General principles of law
A third source of international
law identified by the ICJ’s statute is “the general principles of law
recognized by civilized nations.” These principles essentially provide a
mechanism to address international issues not already subject either to treaty provisions
or to binding customary rules. Such general principles may arise either through
municipal law or through international law, and many are in fact procedural or
evidential principles or those that deal with the machinery of the judicial
process—e.g., the principle, established in Chorzow Factory (1927–28),
that the breach of an
engagement involves an obligation to make reparation. Accordingly, in the Chorzow
Factory case, Poland was obliged to pay compensation to Germany for
the illegal expropriation of a factory.
Perhaps the most important principle of international law is that of good faith. It governs the creation and performance of legal obligations and is the foundation of treaty law. Another important general principle is that of equity, which permits international law to have a degree of flexibility in its application and enforcement. The Law of the Sea treaty, for example, called for the delimitation on the basis of equity of exclusive economic zones and continental shelves between states with opposing or adjacent coasts.
Other sources
Article 38 (1) of the ICJ’s statute also recognizes
judicial decisions and scholarly writings as subsidiary means for the
determination of the law. Both municipal and international judicial decisions
can serve to establish new principles and rules. In municipal cases,
international legal rules can become clear through their consistent application
by the courts of a number of states. A clearer method of law determination,
however, is constituted by
the international judicial decisions of bodies such as the ICJ at The Hague, the UN
International Tribunal for the Law of the Sea at Hamburg (Germany), and
international arbitral tribunals.
International
law can arise indirectly through other mechanisms. UN General Assembly resolutions, for example,
are not binding—except with respect to certain organizational procedures—but
they can be extremely influential. Resolutions may assist in the creation of
new customary rules, both in terms of state practice and in the process of
establishing a custom by demonstrating the acceptance by states of the practice
“as law” (the opinio
juris). For this to occur, a resolution must contain generalizable
provisions and attract substantial support from countries with diverse ideological, cultural, and political
perspectives. Examples of such resolutions include the Declaration on the
Granting of Independence to Colonial Countries and Peoples (1960), the
Declaration on the Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space (1963), and the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among States
(1970).
Unilateral
actions by a state may give rise to legal obligations when it is clear that the
state intends to be bound by the obligation and when its intention is publicly
announced. An example of such a case was France’s decision to stop atmospheric
nuclear testing during litigation at the ICJ between it and Australia and New Zealand (1974)
concerning the legality of such testing. Unilateral statements also may constitute evidence of a
state’s views on a particular issue. Even when an instrument or document does
not entail a legal obligation, it may be influential within the international
community. The Helsinki Accords (1975),
which attempted to reduce tensions between the Soviet Union and the United
States during the Cold
War, was expressly not binding but had immense political effects. In
certain areas, such as environmental
law and economic law, a range of recommendations, guidelines,
codes of practice, and standards may produce what is termed “soft law”—that is, an
instrument that has no strict legal value but constitutes an important
statement.
Hierarchies of sources and norms
General principles are complementary to treaty law
and custom. Sources that are of more recent origin are generally accepted as
more authoritative,
and specific rules take precedence over
general rules. Jus cogens (Latin: “compelling law”) rules are
peremptory norms that cannot be deviated from by states; they possess a higher
status than jus dispositivum (Latin: “law subject to the
dispensation of the parties”), or normal international rules, and can be
altered only by subsequent norms of the same status. Rules in the former
category include the prohibitions against genocide, slavery,
and piracy and
the outlawing of aggression.
Other examples of jus cogens rules are more controversial.
The Vienna
Convention on the Law of Treaties provides (Article 53) that a treaty
will be void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. Further, the wrongfulness of a state action
is precluded if the act is required by a peremptory norm of general
international law. For a jus cogens norm to be created, the
principle must first be established as a rule of international law and then
recognized by the international community as a peremptory rule of law from
which no derogation is permitted.
International law also has established a category of erga omnes (Latin:
“toward all”) obligations, which apply to all states. Whereas in ordinary
obligations the defaulting state
bears responsibility toward particular interested states (e.g., other parties
to the treaty that has been breached), in the breach of erga omnes obligations,
all states have an interest and may take appropriate actions in response.
States in
international law
Although states are not the only entities with international legal
standing and are not the exclusive international
actors, they are the primary subjects of international law and possess the
greatest range of rights and obligations. Unlike states, which possess rights
and obligations automatically, international organizations, individuals, and
others derive their rights and duties in international law directly from
particular instruments. Individuals may, for example, assert their rights under
international law under the International
Covenant on Economic, Social, and Cultural Rights and the International
Covenant on Civil and Political Rights, both of which entered into force in
1976.
Statehood
Creation of
states
The process
of creating new states is a mixture of fact and law, involving the
establishment of particular factual conditions and compliance with
relevant rules. The accepted criteria of
statehood were laid down in the Montevideo
Convention (1933), which provided that a state must possess a
permanent population, a defined territory, a government, and the capacity to
conduct international
relations.
The need
for a permanent population and a defined territory is clear, though boundary
disputes—e.g., those concerning Albania after World War I and
Israel in 1948—do not preclude statehood. The international community (including
the UN) has recognized some states while they were embroiled in a civil war
(e.g., the Congo in 1960 and Angola in 1975), thus eroding the
effective-government criterion. Croatia and Bosnia
and Herzegovina were also recognized as new states by much of the
international community in 1992, though at the time neither was able to
exercise any effective control over significant parts of its territory.
Although independence is required, it need not be more than
formal constitutional independence.
States may become extinct
through merger (North and South Yemen in 1990), absorption (the accession of
the Länder [states] of the German Democratic Republic into
the Federal Republic of
Germany in 1990), dissolution and reestablishment as new and separate
states (the creation of separate Czech and Slovak republics from Czechoslovakia
in 1993), limited dismemberment with a territorially smaller state continuing
the identity of the larger state coupled with the emergence of new states from
part of the territory of the latter (the Soviet Union in
1991), or, historically, annexation (Nazi
Germany’s Anschluss of
Austria in 1938).
Recognition
Recognition
is a process whereby certain facts are accepted and endowed with a certain
legal status, such as statehood, sovereignty over
newly acquired territory, or the international effects of the grant of
nationality. The process of recognizing as a state a new entity that conforms
with the criteria of statehood is a political one, each country deciding for
itself whether to extend such acknowledgment. Normal sovereign and
diplomatic immunities are generally extended only after a state’s executive
authority has formally recognized another state (see diplomatic immunity).
International recognition is important evidence that the factual criteria of
statehood actually have been fulfilled. A large number of recognitions may
buttress a claim to statehood even in circumstances where the conditions for
statehood have been fulfilled imperfectly (e.g., Bosnia and Herzegovina in
1992). According to the “declaratory” theory of recognition, which is supported
by international practice, the act of recognition signifies no more than the
acceptance of an already-existing factual situation—i.e., conformity with the
criteria of statehood. The “constitutive” theory, in contrast, contends that the act of recognition
itself actually creates the state.
Before granting recognition, states may require the
fulfillment of additional conditions. The European
Community (ultimately succeeded by the EU), for example, issued
declarations in 1991 on the new states that were then forming in eastern Europe, the former Soviet
Union, and Yugoslavia that required, inter alia, respect for minority rights,
the inviolability of frontiers, and commitments to disarmament and nuclear
nonproliferation. The timing of any recognition is crucial—particularly when a
new state has been formed partly from an existing one. Premature recognition in
a case of secession can amount to intervention in a state’s internal affairs, a
violation of one of the fundamental principles of international law.
Recognition of governments is
distinguished from the recognition of a state. The contemporary trend
is in fact no longer to recognize governments formally but to focus instead
upon the continuation (or discontinuation) of diplomatic relations. By this
change, states seek to avoid the political difficulties involved in deciding
whether or not to “recognize” new regimes taking power by nonconstitutional
means.
Henry L. Stimson.
Although states are not obliged to recognize new claimants to statehood,
circumstances sometimes arise that make it a positive duty not to recognize a
state. During the 1930s, U.S. Secretary of State Henry Stimson propounded
the doctrine of the nonrecognition of situations created as a result of aggression, an approach
that has been reinforced since the end of World War II. In the
1960s, the UN Security Council “called upon” all states not to recognize
the Rhodesian white-minority
regime’s declaration of independence and imposed economic sanctions.
Similar international action was taken in the 1970s and ’80s in response
to South Africa’s creation
of Bantustans, or
homelands, which were territories that the white-minority government designated
as “independent states” as part of its policy of apartheid. The Security
Council also pronounced the purported independence of Turkish-occupied northern
Cyprus as “legally invalid” (1983) and declared “null and void” Iraq’s
annexation of Kuwait (1990). The UN also has declared that Israel’s
purported annexation of the Golan Heights (conquered
from Syria in 1967) is invalid and has ruled similarly with regard to Israel’s
extension of its jurisdiction to formerly Jordanian-controlled East Jerusalem.
The responsibility of states
The rights accorded to states under international
law imply responsibilities. States are liable for breaches of
their obligations, provided that the breach is
attributable to the state itself. A state is responsible for direct violations
of international law—e.g., the breach of a treaty or the violation
of another state’s territory. A state also is liable for breaches committed by
its internal institutions, however they are defined by its domestic law; by
entities and persons exercising governmental authority; and by persons acting
under the direction or control of the state. These responsibilities exist even
if the organ or entity exceeded its authority. Further, the state is
internationally responsible for the private activities of persons to the extent
that they are subsequently adopted by the state. In 1979, for example, the
Iranian government officially supported the seizure of the U.S. embassy by
militants and the subsequent holding of diplomats and other embassy staff
as hostages.
A state is not internationally responsible if its conduct was required by a
peremptory norm of general international law, if it was taken in conformity
with the right to self-defense under the UN Charter, if it constituted a legitimate measure
to pressure another state to comply with its international obligations, if it
was taken as a result of a force majeure (French: “greater
force”) beyond the state’s control, if it could not reasonably be avoided in
order to save a life or lives, or if it constituted the only means of
safeguarding an essential interest of the state against a grave and imminent peril,
where no essential interest of the states toward which the obligation exists
(or of the international community) was impaired.
A state must make full reparation for any injury
caused by an illegal act for which it is internationally responsible. Reparation consists
of restitution of the original situation if possible, compensation where this
is not possible, or satisfaction (i.e., acknowledgment of and apology for the
breach) if neither is possible.
One controversial aspect of international law has
been the suggestion, made by the International
Law Commission in its 1996 draft on State Responsibility, that states
can be held responsible for “international crimes” (comprising internationally
wrongful acts resulting from the breach by a state of an international
obligation so essential for the protection of the international community’s
fundamental interests that its breach is recognized as a crime by that
community). Examples given included aggression, colonial
domination, and genocide.
In addition to the argument that states (as distinct from individuals) could
not be guilty of crimes as such, serious definitional problems arose, and there
was concern over the consequences of such crimes for states. Accordingly, in
its draft articles finally adopted in 2001, the International Law Commission
dispensed with this politically divisive approach
but retained the idea of a more serious form of international wrong. The
commission emphasized the concept of serious breaches of obligations arising
under a peremptory norm of international law (i.e., the rules of jus
cogens, or those deemed essential for the protection of fundamental
international interests). In such circumstances, all states are under an
obligation not to recognize such a situation and to cooperate in ending it.
States may take up the claims of
individuals injured because of the acts or omissions of another state. In such
circumstances, the injured persons must have exhausted all domestic remedies to
hold the state responsible unless these are ineffective. Further, the injured
person must be a national of the state adopting the claim. Although states
alone possess the right to grant nationality, if the claim is pleaded against
another state, the grant of nationality must conform to the requirements of
international law and, in particular, demonstrate the existence of a genuine
link between the individual and the state concerned.
Spatial
definition of states
The sovereignty of
a state is confined to a defined piece of territory, which is subject to
the exclusive jurisdiction
of the state and is protected by international law from violation by other
states. Although frontier disputes do not detract from the sovereignty or
independence of a particular state, it is inherent in
statehood that there should be a core territory that is subject to the
effective control of the authorities of the state. Additional territory may be
acquired by states through cession from other states (the Island of
Palmas case in 1928); by the occupation of territory that is terra nullius (Latin:
“the land of no one”)—i.e., land not under the sovereignty or control of any
other state or socially or politically organized grouping; or by prescription,
where a state acquires territory through a continued period of uncontested
sovereignty.
Under the UN Charter, sovereign title
to territory cannot be acquired purely and simply by the use of force. Express
or implied consent is required under international law for recognition of
territory acquired by force, whether or not the use of force was legal. When
states are created from the dissolution or dismemberment of existing countries,
it is presumed that the frontiers of the new states will conform to the
boundaries of prior internal administrative divisions. This doctrine, known
as uti possidetis (Latin: “as you possess”), was established
to ensure the stability of newly independent states whose colonial boundaries
were often drawn arbitrarily.
Maritime spaces and boundaries
The sovereign territory
of a state extends to its recognized land boundaries and to the border of
airspace and outer space above them. A state that has a coastal boundary also
possesses certain areas of the sea. Sovereignty over bodies of water is
regulated by four separate 1958 conventions—the Convention on the Territorial
Sea and Contiguous Zone,
the Convention on the Continental Shelf, the Convention on the High Seas, and
the Geneva Convention on Fishing and Conservation of the Living Resources of
the High Seas—and by the comprehensive Law of the Sea treaty
(1982), which entered into force in 1994.
The
territory of states includes internal waters (i.e., harbours, lakes, and rivers
that are on the landward side of the baselines from which the territorial sea
and other maritime zones are measured), over which the state has full and
complete sovereignty and exclusive jurisdiction. Through the Law of the Sea
treaty and now under customary international law, a state may claim a
territorial sea of up to 12 nautical miles from the baselines (essentially the
low-water mark around the coasts of the state concerned), though, in cases
where a coast is heavily indented, a series of straight baselines from
projecting points may be drawn. A state has sovereignty over its territorial
seas, but they are subject to the right of innocent passage—i.e., the right of
all shipping to pass through the territorial waters of
states, provided that the passage is not prejudicial. Examples of prejudicial
conduct include the threat or use of force, spying, willful and serious
pollution, breaches of customs,
sanitary, fiscal, and immigration regulations, and fishing. Coastal states may
exercise a limited degree of criminal jurisdiction with regard to foreign ships
that are engaged in innocent passage through their territorial seas (e.g., in
cases where the consequences of the crime alleged extend to the coastal state or where
such measures are necessary for the suppression of the traffic of illicit
drugs).
The 1958 Convention on the Territorial Sea and Contiguous Zone provided that states cannot suspend the innocent passage of foreign ships through straits that are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state. The 1982 treaty established a new right of transit passage for the purpose of continuous and expeditious transit in straits used for international navigation between one part of the high seas or exclusive economic zone and another. Some international straits are subject to special regimes. The controversial Straits Question, for example, concerned restrictions in the 19th and 20th centuries that limited naval access to the Bosporus and Dardanelles—which connect the Black Sea with the Sea of Marmara and the Mediterranean Sea—to countries bordering the Black Sea.
A series of other maritime zones extend beyond territorial seas.
A contiguous zone—which must be claimed and, unlike territorial seas, does
not exist automatically—allows coastal states to exercise the control necessary
to prevent and punish infringements of customs, sanitary, fiscal, and
immigration regulations within and beyond its territory or territorial sea. The
zone originally extended 12 nautical miles from the baselines but was doubled
by the 1982 treaty. The exclusive economic zone developed out of claims to
fishing zones. The 1982 treaty allowed states to claim such a zone, extending
200 nautical miles from the baselines, in which they would possess sovereign
rights to explore, exploit, conserve, and manage the natural resources of the
seas and seabed; to exercise jurisdiction over artificial installations and
scientific research; and to protect and preserve the marine environment.
The zone was accepted as part of customary international law in the ICJ’s 1985
decision in the dispute between Libya and Malta, which concerned the
delimitation of the continental shelf between them.
A state is automatically entitled to exercise sovereign rights to
explore and exploit the natural resources in an adjacent continental shelf (i.e.,
the ledges projecting from the land into and under the sea). The shelf may
extend either to the outer edge of the continental margin or
to 200 miles from the baselines where the outer edge of the continental margin
does not reach that distance. Thus, the continental shelf as a concept in
international law becomes a legal fiction where
the shelf does not in fact extend as far as 200 miles.
Problems have arisen over the delimitation of the various maritime zones
between adjacent and opposing states. International law generally requires
equitable resolutions of maritime territorial disputes. Although the definition
of equity is
unclear, relevant factors include the impact of natural prolongation of the
land territory (i.e., the basic principle that the continental shelf is a
continuation of the land territory into the sea), proportionality between the
length of a disputing party’s coastline and the extent of continental shelf it
controls, the principle of equidistance (i.e., a line of equal distance from
the two shores in question), and the existence (if any) of islands between the
coastlines.
Jurisdiction refers to the power of a state to affect persons, property,
and circumstances within its territory. It may be exercised through
legislative, executive, or judicial actions. International law particularly
addresses questions of criminal law and
essentially leaves civil jurisdiction to
national control. According to the territorial principle, states
have exclusive authority
to deal with criminal issues arising within their territories; this principle
has been modified to permit officials from one state to act within another
state in certain circumstances (e.g., the Channel Tunnel arrangements
between the United Kingdom and France and the 1994 peace treaty between Israel
and Jordan). The nationality principle permits a country to exercise
criminal jurisdiction over any of its nationals accused of criminal offenses in
another state. Historically, this principle has been associated more closely with
civil-law systems than with common-law ones, though its use in common-law
systems increased in the late 20th century (e.g., the adoption in Britain of
the War Crimes Act in 1991 and the Sex Offenders Act in 1997). Ships and
aircraft have the nationality of the state whose flag they fly or in which they
are registered and are subject to its jurisdiction.
The passive personality principle allows states, in limited cases,
to claim jurisdiction to try a foreign national for offenses committed abroad
that affect its own citizens. This principle has been used by the United States to
prosecute terrorists and even to arrest (in 1989–90) the de facto leader of
Panama, Manuel
Noriega, who was subsequently convicted by an American court of cocaine
trafficking, racketeering,
and money
laundering. The principle appears in a number of conventions, including the
International Convention Against the Taking of Hostages (1979), the Convention
on the Prevention and Punishment of Crimes Against Internationally Protected
Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984). The protective principle, which
is included in the hostages and aircraft-hijacking conventions and the
Convention on the Safety of United Nations and
Associated Personnel (1994), can be invoked by a
state in cases where an alien has committed an act abroad deemed prejudicial to
that state’s interests, as distinct from harming the interests of nationals
(the passive personality principle). Finally, the universality principle
allows for the assertion of jurisdiction in cases where the alleged crime
may be prosecuted by all states (e.g., war crimes, crimes
against the peace, crimes against humanity, slavery, and piracy).
Jurisdictional immunity exists in certain contexts.
Diplomatic personnel, for example, have immunity from
prosecution in the state in which they operate. In the 1960s, however,
the Vienna
Convention on Diplomatic Relations and the Vienna Convention on
Consular Relations stipulated that
the level of immunity varies according to the official’s rank. Immunity is
generally more extensive in criminal than in civil matters. A country’s
diplomatic mission and archives also are protected. International organizations
possess immunity from local jurisdiction in accordance with international
conventions (e.g., the General Convention on the Privileges and Immunities of
the United Nations of 1946) and agreements signed with the state in which they
are based. Certain immunities also extend to the judges of international courts
and to visiting armed forces.
Disputes between states
Peaceful settlement
International law provides a variety of methods for settling disputes
peacefully, none of which takes precedence over
any other. Nonbinding mechanisms include direct negotiations between the
parties and the involvement of third parties through good offices, mediation,
inquiry, and conciliation. The involvement of regional and global international
organizations has increased dramatically since the end of World War II, as many
of their charters contain specific peaceful-settlement mechanisms applicable to
disputes between member states. The UN may be
utilized at several levels. The secretary-general, for example, may use his
good offices to suggest the terms or modalities of
a settlement, and the General Assembly may recommend particular solutions or
methods to resolve disputes. Similarly, the Security Council may recommend
solutions (e.g., its resolution in 1967 regarding the Arab-Israeli conflict)
or, if there is a threat to or a breach of
international peace and security or an act of aggression, issue
binding decisions to impose economic sanctions or
to authorize the use of military force (e.g., in Korea in 1950 and in Kuwait in
1990). Regional organizations, such as the Organization
of American States and the African Union, also
have played active roles in resolving interstate disputes.
Additional
methods of binding dispute resolution include arbitration and judicial
settlement. Arbitration occurs when the disputing states place their conflict
before a binding tribunal. In
some cases, the tribunal is required to make a number of decisions involving
different claimants (e.g., in the dispute between the United States and Iran
arising out of the 1979 Iranian revolution), while in others the tribunal will
exercise jurisdiction over a single issue only. In a judicial settlement, a
dispute is placed before an existing independent court. The most important and comprehensive of these
courts is the ICJ, the
successor of the Permanent Court of International Justice, created in 1920. Established by the UN
Charter (Article 92) as the UN’s principal judicial organ, the ICJ consists of
15 judges who represent the main forms of civilization and principal legal
systems of the world. They are elected by the General Assembly and Security
Council for nine-year terms.
The ICJ, whose decisions are binding upon the parties and
extremely influential generally, possesses both contentious and advisory
jurisdiction. Contentious
jurisdiction enables the court to hear cases between states, provided that the
states concerned have given their consent. This consent may be signaled through
a special agreement, or compromis (French:
“compromise”); through a convention that gives the court jurisdiction over
matters that include the dispute in question (e.g., the genocide convention);
or through the so-called optional clause, in which a state makes a declaration
in advance accepting the ICJ’s jurisdiction over matters relating to the
dispute. The ICJ has issued rulings in numerous important cases, ranging from
the Corfu Channel case
(1949), in which Albania was ordered to pay compensation to Britain for the
damage caused by Albania’s mining of the channel, to the territorial dispute between Botswana and Namibia (1999), in
which the ICJ favoured Botswana’s claim over Sedudu (Kasikili) Island. The
ICJ’s advisory jurisdiction enables it to give opinions on legal questions put
to it by any body authorized by or acting in accordance with the UN Charter.
Other important international
judicial bodies are the European
Court of Human Rights, established by the European Convention on Human
Rights; the Inter-American Court of Human Rights, created by the Inter-American
Convention on Human Rights; and the International Tribunal for the Law of the Sea, set
up under the Law of the Sea treaty. The World Trade
Organization (WTO), established in 1995 to supervise and liberalize
world trade, also has created dispute-settlement mechanisms.
Hijacked
airliner approaching the south tower of the World Trade Center.
The UN
Charter prohibits the threat or the use of force against the
territorial integrity or
political independence of states or in any other manner inconsistent with the
purposes of the Charter; these proscriptions also are part of customary
international law. Force may be used by states only for self-defense or
pursuant to a UN Security Council decision giving appropriate authorization
(e.g., the decision to authorize the use of force against Iraq by the United
States and its allies in the Persian Gulf War in
1990–91). The right of self-defense exists in customary international law and
permits states to resort to force if there is an instant and overwhelming need
to act, but the use of such force must be proportionate to the threat. The
right to self-defense is slightly more restricted under Article 51 of the UN
Charter, which refers to the “inherent right of individual or collective self-defence
if an armed attack occurs” until the Security Council has taken action. In a
series of binding resolutions adopted after the terrorist September 11
attacks in 2001 against the World Trade Center and
the Pentagon in
the United States, the Security Council emphasized that the right to
self-defense also applies with regard to international terrorism. Preemptive strikes by
countries that reasonably believe that an attack upon them is imminent are
controversial but permissible under international law, provided that the criteria of
necessity and proportionality are present.
It has been argued that force may be used without prior UN authorization
in cases of extreme domestic human rights abuses
(e.g., the actions taken by NATO with regard to Kosovo in 1999 or
India’s intervention in East Pakistan [now Bangladesh] in 1971).
Nonetheless, humanitarian interventions are deeply controversial, because they
contradict the principle of nonintervention in the domestic affairs of other
states.
The use of force is regulated by the rules and principles of
international humanitarian
law. The Geneva
Conventions (1949) and their additional protocols (1977)
deal with, among other topics, prisoners of war,
the sick and wounded, war at sea, occupied territories, and the treatment of
civilians. In addition, a number of conventions and declarations detail the
types of weapons that may not be used in warfare. So-called “dum-dum bullets,”
which cause extensive tissue damage, poisonous gases, and chemical weapons are
prohibited, and the use of mines has been restricted. Whether the use of
nuclear weapons is per se illegal under international law is an issue of some
controversy; in any event, the criteria of necessity and proportionality would
have to be met.
International cooperation
States have opted to cooperate in a number of areas beyond merely the
allocation and regulation of sovereign rights.
Traditionally, the high seas beyond the territorial waters of
states have been regarded as open to all and incapable of appropriation. The
definition of the high seas has changed somewhat since the creation of the
various maritime zones, so that they now are considered to be those waters not
included in the exclusive
economic zone, territorial sea, or internal waters of states or in the
archipelagic waters of archipelagic states.
The high seas are open to all states, with each state possessing the
freedoms of navigation and overflight and the freedom to lay submarine cables
and pipelines, to conduct scientific research, and to fish. On ships on the
high seas, jurisdiction is
exercised by the flag state (i.e., the state whose flag is flown by the
particular ship). Nevertheless, warships have the right to board a ship that is
suspected of engaging in piracy, the slave trade, or
unauthorized broadcasting. There also is a right of “hot pursuit,” provided
that the pursuit itself is continuous, onto the high seas from the territorial
sea or economic zone of the pursuing state in order to detain a vessel
suspected of violating the laws of the coastal state in question.
The international
seabed (i.e., the seabed beyond the limits of national jurisdiction),
parts of which are believed to be rich in minerals, is not subject to national
appropriation and has been designated a “common
heritage of mankind” by the Declaration of Principles Governing the Seabed
(1970) and the Law
of the Sea treaty. Activities in the international seabed, also known
as “the Area,” are expected to be carried out in the collective interests
of all states, and benefits are expected to be shared equitably.
Outer space lies beyond the currently undefined upper limit of a state’s
sovereign airspace.
It was declared free for exploration and use by all states and incapable of
national appropriation by a 1963 UN General Assembly resolution. The Outer Space Treaty (1967) reiterated these
principles and provided that the exploration and use of outer space should be
carried out for the benefit of all countries. The Moon Treaty (1979)
provided for the demilitarization of the Moon and other celestial bodies and
declared the Moon and its resources to be a “common heritage of mankind.” A
number of agreements concerning space objects (1972 and 1974) and the rescue of
astronauts (1968) also have been signed.
The Antarctic
Treaty (1959) prevents militarization of the Antarctic continent and
suspends territorial claims by states for the life of the treaty. Because it
provides no mechanism for its termination, however, a continuing and open-ended
regime has been created. There also are various agreements that protect
Antarctica’s environment.
Protection of the environment
Because the rules of state responsibility require attributions of
wrongful acts to particular states—something that is difficult to prove
conclusively in cases of harm to the environment—it was recognized that
protecting the environment would have to be accomplished by means other than
individual state responsibility. Instead, an international cooperative approach
has been adopted. For several kinds of pollutants,
for example, states have agreed to impose progressively reduced limits on their
permissible emissions.
The Stockholm
Declaration (1972) and the Rio
Declaration (1992), which was issued by the United
Nations Conference on Environment and Development, enjoined states to
ensure that activities within their jurisdiction do not cause environmental
damage to other states or areas. Other agreements have addressed the need for
early consultation on potential environmental problems, notification of existing
problems, and wider use of environmental-impact assessments.
Supervisory and monitoring mechanisms also have been established by several of
these agreements, including the Convention on Long-Range Transboundary Air
Pollution (1979), the Law of the Sea treaty, the Vienna Convention for the
Protection of the Ozone Layer (1985), the amended Convention
on Marine Pollution from Land-Based Sources (1986), the Convention on
Environmental Impact Assessment in
a Transboundary Context (1991),
the Convention
on Biological Diversity (1992), the United Nations Framework
Convention on Climate Change (1992), and the Kyoto Protocol (1997).
Nonstate actors in international law
Individuals
Historically,
states were the only subjects of international law. During the 20th century,
however, a growing body of international law was devoted to defining the rights
and responsibilities of individuals. The rights of individuals under
international law are detailed in various human rights instruments
and agreements. Although references to the protection of human rights appear in
the UN Charter, the principal engine of the process was the Universal
Declaration of Human Rights (1948; UDHR). The UDHR has been
supplemented by an impressive range of international treaties, including
the Convention
on the Prevention and Punishment of the Crime of Genocide,
the International Convention on the Elimination of All Forms of Racial
Discrimination (1965), the International
Covenant on Civil and Political Rights (1966), the International
Covenant on Economic, Social and Cultural Rights (1966), the Convention
on the Elimination of All Forms of Discrimination Against Women (1979),
the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984),
and the Convention
on the Rights of the Child (1989). With the exception of the
convention on genocide, these agreements also have established monitoring
committees, which, depending on the terms of the particular agreement, may
examine the regular reports required of states, issue general and
state-specific comments, and entertain petitions from individuals. The
committee against torture may
commence an inquiry on its own motion. The broad rights protected in these
conventions include the right to life and due process, freedom
from discrimination and
torture, and freedom of expression and assembly. The right to self-determination and
the rights of persons belonging to minority groups are protected by the
convention on civil and political rights. In addition, the UN has established a
range of organs and mechanisms to protect human rights, including the
Commission on Human Rights (replaced in 2006 by the Human Rights Council).
Human rights protections also exist at the regional level. The
best-developed system was established by the European
Convention on Human Rights, which has more than 40 state parties as well as
a court that can hear both interstate and individual applications. Other
examples are the Inter-American Convention on Human Rights, which has a
commission and a court, and the African Charter on Human and Peoples’ Rights
(1982), which has a commission and is developing a court.
In addition to the rights granted to individuals, international law also
has endowed them with responsibilities. In particular, following the Nürnberg
Charter (1945) and the subsequent establishment of a tribunal to prosecute Nazi
war criminals, individuals have been subject to international criminal
responsibility and have been directly liable for breaches of
international law, irrespective of domestic legal considerations. Individual
responsibility was affirmed in the Geneva Conventions and
their additional protocols and
was affirmed and put into effect by the statutes that created war crimes
tribunals for Yugoslavia (1993) and Rwanda (1994), both of
which prosecuted, convicted, and sentenced persons accused of war crimes. The
Rome Statute of the International
Criminal Court, which entered into force in 2002, also provides for
individual international criminal responsibility.
A major difference between 19th- and 21st-century international law is the prominent
position now occupied by international
organizations. The size and scope of international organizations vary. They
may be bilateral, subregional, regional, or global, and they may address
relatively narrow or very broad concerns. The powers and duties allocated to
international organizations also differ widely. Some international
organizations are legally recognized as international actors—and thus are
liable for breaches of
international legal obligations—while others are not.
Since the end of World War II, the
leading international organization has been the UN. Although the General
Assembly may pass only nonbinding resolutions, the Security
Council can authorize the use of force if there is a threat to or
a breach of
international peace and security or an act of aggression. Since the
end of the Cold War,
the council has extended the definition of a threat to or a breach of
international peace and security to encompass not
only international conflicts but also internal conflicts (e.g., in Yugoslavia,
Somalia, Liberia, and Rwanda) and even the overthrow of a democratic government
and subsequent upheavals and refugee movements (e.g., in Haiti).
Other international organizations have developed significant roles
in international
relations. They include the World Bank, which
provides aid to promote economic development, the International
Monetary Fund, which helps countries manage their balance-of-payments problems,
and the WTO, which supervises and regulates international
trade. Regional organizations and agreements, such as the EU and
the North
American Free Trade Agreement between Canada, Mexico, and the United States, govern
areas that traditionally have fallen within the domestic jurisdiction of states
(e.g., trade, the environment,
and labour standards). At the beginning of the 21st century, it was apparent
that individuals and international organizations would play an increasingly
vital role in international relations and international law.
Current trends
International law has been transformed from a European-based system
enabling sovereign states
to interact in a relatively limited number of areas to a truly international
order with profound and increasingly cooperative requirements. Globalization has
ensured that the doctrine of the sovereignty of
states has in practice been modified, as the proliferation of regional and
global international organizations demonstrates. In an increasing number of
cases, certain sovereign powers of states have been delegated to international
institutions. Furthermore, the growth of large trading blocs has underscored
both regional and international interdependence, though it also has stimulated
and institutionalized rivalries between different blocs. The striking
development of the movement for universal human rights since
the conclusion of World War II has led to essentially unresolved conflicts with
some states that continue to observe traditional cultural values. The rules
governing the use of force have focused particular attention on the UN, but
violent disputes have not disappeared, and the development of increasingly
deadly armaments—including biological, chemical, and nuclear weapons (so-called
“weapons
of mass destruction”)—has placed all states in a more vulnerable position.
Particular challenges are posed when such weapons are possessed by states that
have used them or threaten to do so. In 2003 the United States and Britain led
an attack against Iraq and
overthrew its government because they believed that the country continued to
possess weapons of mass destruction in defiance of binding Security Council
resolutions; the attack proceeded despite opposition from a majority of the
council to a proposed resolution explicitly authorizing the use of force. Although
terrorism is not a new phenomenon, the increasing scale of the destruction it
may cause, as well as the use by terrorists of modern forms of communication
such as computers and mobile phones, has raised serious new challenges for
international law—ones that may affect the interpretation of the right of
self-defense and pose a critical test for the UN.
Angary, in international law, the right of belligerents to requisition for their use neutral merchant vessels, aircraft, and other means of transport that are within their territorial jurisdiction. Generally, the right of angary should be applied only in case of pressing need in time of war, and compensation is due to the neutral owner. The right of angary has, in effect, come to be extended to cover not only land and sea transport but also any kind of neutral property under the jurisdiction of a belligerent.
The
right of angary was applied on several occasions during World Wars I and II.
Thus, by proclamation of March 20, 1918, the president of the United States took
over merchant vessels of Dutch registry lying in U.S. waters. Similar action
was taken by Great Britain, France, and Italy. The United States in 1941,
though formally still neutral, took over foreign vessels lying idle in its territorial
waters but did so under a special right conferred by statute.
It has come to be recognized that the peacetime powers of
expropriation grant adequate authority to seize and requisition property under the territorial
jurisdiction of a belligerent state without having recourse to the right of
angary.
Martial law, temporary rule by military authorities of a designated area in time of emergency when the civil authorities are deemed unable to function. The legal effects of a declaration of martial law differ in various jurisdictions, but they generally involve a suspension of normal civil rights and the extension to the civilian population of summary military justice or of military law. Although temporary in theory, a state of martial law may in fact continue indefinitely.
In the English legal system, the term is of dubious
significance; in the words of the English jurist Sir Frederick Pollock,
“so-called ‘martial law,’ as distinct from military law, is an unlucky name for
the justification by the common law of
acts done by necessity for the defence of the Commonwealth when there is war within
the realm.”
Such “acts done by necessity” are limited only by international
law and the conventions of civilized warfare. Further, the
regular civil courts do not review the decisions of tribunals set up by the
military authorities, and very little authority exists on the question of
remedies against abuse of powers by the military. In Great Britain and
many other jurisdictions, such questions
are of little significance in view of the modern practice of taking emergency
or special powers by statute.
Continuous voyage, in international law,
a voyage that, in view of its purposes, is regarded as one single voyage though
interrupted (as in the transshipment of contraband of war). The
doctrine specifically refers to the stoppage and seizure of goods carried by
neutral vessels either out of or heading toward a neutral port. If such goods
were to be transshipped to another belligerent (the enemy)
at some point in the voyage, the state invoking the doctrine could claim that,
regardless of the period of neutral possession, the voyage was continuously
geared toward trade with the belligerent power.
Perhaps the most famous invocation of the doctrine of
continuous voyage occurred during the Napoleonic wars, when American
merchants attempted to evade British blockade restrictions
by carrying goods from the French West
Indies to France via U.S. ports. British courts ruled that such
voyages were in fact continuous and were not entitled to be considered neutral
commerce.
Natural law, in philosophy, system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law.
There have been several disagreements over the meaning of natural law
and its relation to positive law. Aristotle (384–322 BCE) held that what was “just by
nature” was not always the same as what was “just by law,” that there was a
natural justice valid
everywhere with the same force and “not existing by people’s thinking this or
that,” and that appeal could be made to it from positive law. However, he drew
his examples of natural law primarily from his observation of the Greeks in
their city-states, who subordinated women to men, slaves to citizens, and
“barbarians” to Hellenes. In contrast, the Stoics conceived of
an entirely egalitarian law of nature in
conformity with the logos (reason) inherent in
the human mind. Roman jurists paid lip
service to this notion, which was reflected in the writings of St. Paul (c.
10–67 CE), who described a
law “written in the hearts” of the Gentiles (Romans 2:14–15).
St. Augustine of
Hippo (354–430) embraced Paul’s notion and developed the idea of man’s having
lived freely under natural law before his fall and subsequent bondage under sin
and positive law. In the 12th century Gratian,
an Italian monk and father of the study of canon law, equated
natural law with divine law—that is, with the revealed law of the Old and New Testaments, in
particular the Christian version of the Golden Rule.
St. Thomas Aquinas (c. 1224/25–1274) propounded an influential systematization, maintaining that, though the eternal law of divine reason is unknowable to us in its perfection as it exists in God’s mind, it is known to us in part not only by revelation but also by the operations of our reason. The law of nature, which is “nothing else than the participation of the eternal law in the rational creature,” thus comprises those precepts that humankind is able to formulate—namely, the preservation of one’s own good, the fulfillment of “those inclinations which nature has taught to all animals,” and the pursuit of the knowledge of God. Human law must be the particular application of natural law.
Natural law in the Enlightenment
and the modern era
Other Scholastic thinkers, including the Franciscan philosophers John Duns Scotus (1266–1308) and William of Ockham (c. 1285–1347/49) and the Spanish theologian Francisco Suárez (1548–1617), emphasized divine will instead of divine reason as the source of law. This “voluntarism” influenced the Roman Catholic jurisprudence of the Counter-Reformation in the 16th and early 17th centuries, but the Thomistic doctrine was later revived and reinforced to become the main philosophical ground for the papal exposition of natural right in the social teaching of Pope Leo XIII (1810–1903) and his successors.
Hugo Grotius, detail of a portrait by Michiel Janszoon van Mierevelt; in the Rijksmuseum, Amsterdam.(more)
In an epoch-making appeal, Hugo Grotius (1583–1645)
claimed that nations were subject to natural law. Whereas his fellow
Calvinist Johannes
Althusius (1557–1638) had proceeded from theological doctrines
of predestination to
elaborate his theory of a universally binding law, Grotius insisted on the
validity of the natural law “even if we were to suppose…that God does not exist
or is not concerned with human affairs.” A
few years later Thomas Hobbes (1588–1679),
starting from the assumption of a savage “state of nature” in which each man
was at war with every other—rather than from the “state of innocence” in which
man had lived in the biblical Garden of Eden—defined
the right of nature (jus naturale) to be “the liberty each man hath to
use his own power for the preservation of his own nature, that is to say, of
life,” and a law
of nature (lex naturalis) as “a precept or general rule found
out by reason, by which a man is forbidden to do that which is destructive of
his life.” He then enumerated the elementary rules on which peace and society
could be established. Thus, Grotius and Hobbes stand together at the head of
that “school of natural law” that, in accordance with the tendencies of
the Enlightenment,
tried to construct a whole edifice of law by rational deduction from a hypothetical “state
of nature” and a “social
contract” of consent between rulers and subjects. John Locke (1632–1704)
departed from Hobbesian pessimism to the extent of describing the state
of nature as a state of society, with free and equal men already
observing the natural law. In France Charles-Louis de
Secondat Montesquieu (1689–1755) argued that natural laws were
presocial and superior to those of religion and the state, and Jean-Jacques
Rousseau (1712–78) postulated a savage who was virtuous in isolation
and actuated by two principles “prior to reason”: self-preservation and
compassion (innate repugnance to the sufferings of others).
The confidence in appeals to natural law displayed by 17th- and 18th-century writers such as Locke, the authors of the American Declaration of Independence, and the authors of France’s Declaration of the Rights of Man and of the Citizen evaporated in the early 19th century. The philosophy of Immanuel Kant (1724–1804), as well as the utilitarianism of Jeremy Bentham (1748–1832), served to weaken the belief that “nature” could be the source of moral or legal norms. In the mid-20th century, however, there was a revival of interest in natural law, sparked by the widespread belief that the Nazi regime of Adolf Hitler, which ruled Germany from 1933 to 1945, had been essentially lawless, even though it also had been the source of a significant amount of positive law. As in previous centuries, the need to challenge the unjust laws of particular states inspired the desire to invoke rules of right and justice held to be natural rather than merely conventional. However, the 19th century’s skepticism about invoking nature as a source of moral and legal norms remained powerful, and contemporary writers almost invariably talked of human rights rather than natural rights.
James Lorimer (born Nov. 4, 1818,
Aberdalgie, Perthshire—died Feb. 13, 1890, Edinburgh) legal philosopher,
proponent of a doctrine of natural law that was
opposed to the utilitarianism of Jeremy
Bentham, the positivism of John Austin,
and the legal historicism of Sir Henry Maine.
More influential in France and Germany than in Great Britain, Lorimer’s theory
held that the natural law was founded on divine authority and revealed in conscience and in
history. He was particularly concerned with the application of natural law to international
relations. He was admitted to the Scottish bar in 1845, and in 1865
he became professor of public law at Edinburgh.
Among Lorimer’s major works are The Institutes of Law (1872), The Institutes of the Law of Nations (2 vol., 1883–84), and Studies National and International (1890). His writings are characterized by vigour and by flashes of prophetic insight, particularly his draft scheme (1870) for a “permanent congress of nations” and an international court of justice.
Precedent, in law, a judgment or decision of a court that is cited in a subsequent dispute as an
example or analogy to justify deciding a similar case or point
of law in the same manner. Common law and equity, as found in English and American legal systems, rely
strongly on the body of established precedents, although in the original
development of equity the court theoretically had freedom from
precedent. At the end of the 19th century, the principle of stare
decisis (Latin: “let the decision stand”) became
rigidly accepted in England. In the United States the principle of precedent is strong, though
higher courts—particularly the Supreme Court of the
United States—may review and overturn earlier precedents.
Martial law, temporary rule by military
authorities of a designated area in time of emergency when the civil
authorities are deemed unable to function. The legal effects of a declaration
of martial law differ
in various jurisdictions, but they generally involve a suspension of normal civil rights and
the extension to the civilian population of summary military justice or of military law.
Although temporary in theory, a state of martial law may in fact continue
indefinitely.
In the English legal system, the term is of dubious
significance; in the words of the English jurist Sir Frederick Pollock,
“so-called ‘martial law,’ as distinct from military law, is an unlucky name for
the justification by the common law of
acts done by necessity for the defence of the Commonwealth when there is war within
the realm.”
Such “acts done by necessity” are limited only by international law and the conventions of civilized warfare. Further, the regular civil courts do not review the decisions of tribunals set up by the military authorities, and very little authority exists on the question of remedies against abuse of powers by the military. In Great Britain and many other jurisdictions, such questions are of little significance in view of the modern practice of taking emergency or special powers by statute.
Proxy, a term denoting either a person who is
authorized to stand in place of another or the legal instrument by which the
authority is conferred. It is a contracted form of the Middle
English word “procuracie.” Proxies are now principally employed for certain
voting purposes. A proxy may in law be
either general or special. A general proxy authorizes the person to whom it is
entrusted to exercise general discretion throughout the matter in hand, while a
special proxy limits the authority to some special proposal or resolution. In
English and American bankruptcy proceedings
creditors may vote by proxy, and every instrument of proxy, which may be either
general or special, is issued either by the official receiver or trustee.
The greatest modern importance of proxies is in their use in shareholder voting.
The Companies
Act (2006) in the United Kingdom and state statutes in the United States provide
that voting by shareholders of limited liability companies
and of corporations shall be in person or by proxy. The separation of share
ownership from management, in corporations in which shareholding is widely held
by the public, has made the proxy a powerful control weapon, since a majority
of shareholders can rarely be assembled in person for meetings at which
directors are elected. Because annual shareholders’ meetings are usually
required by law, the management of such corporations can and normally does
solicit the proxies of all shareholders at the company’s expense, obtains the
proxies of a quorum and majority, and votes the proxies for directors of its
choice.
Lack of protection of absent shareholders led to enactment of
provisions in the Securities Exchange Act of 1934 authorizing
the Securities and Exchange
Commission (SEC) to issue regulations governing proxy
solicitations. These regulations and later amendments apply to
proxies in corporations whose shares are traded on stock exchanges and to all
other corporations having total assets of $10 million or more and 2,000 or more
shareholders. They require solicitations for proxies to be accompanied by
statements informing the shareholder of the measures, so far as known, that
will be acted upon at the meeting, and naming and giving detailed information
about the directors proposed to be elected or reelected. The proxy itself must
show that it is solicited by management, must give the shareholder an
opportunity to instruct the proxy how to vote, and must be signed and dated. In
2007 the SEC adopted rules governing the use of “e-proxies”—proxy materials
made available to shareholders via e-mail or publicly available Web site.
These regulations have made it easier for groups of shareholders to contest management control, although in widely held corporations the cost is extremely high. When a contest takes place, the reasonable costs of solicitations may lawfully be charged by successful or unsuccessful management groups, or by successful groups of dissident shareholders, to the company. However, the cost to an unsuccessful dissident group falls on its financial backers. The uncertainty of the outcome of such contests is heightened because a proxy is usually revocable until actually voted at the meeting. When a shareholder gives more than one proxy, as often happens, only the last-dated proxy counts.
Constitutional
engineering, process
by which political actors devise higher law, which is usually—but not
always—specified in a formal written document and labeled the constitution.
Any particular instance of constitutional engineering
must deal with certain basic questions of organization and process. Those
include designating who is to be involved, when that involvement takes place,
and how the actors are to proceed in formulating, discussing, and approving a
text. Although there are conceivably as many variants in the process as there
are constitutions, several common patterns emerge. This article describes the
factors that distinguish instances of constitutional engineering and some of
the typical patterns.
Stages
Constitution making occurs in
discernible stages, some of which resemble an ordinary legislative process
familiar to many drafters in established democracies. A
schematic design of those phases might include, in sequential order, the
mobilization of interests (and counterinterests), drafting, consultation,
deliberation, adoption, and ratification. Those different stages interact with
the possible actors who might fill the roles to create a matrix of options for
designers. Afghanistan’s
constitution of 2004, for example, was drafted in relative secrecy by a
commission with foreign advice and then sent to the president’s office before
deliberation and adoption at an inclusive constituent assembly,
the Loya Jirga. In that model—which appears to be relatively common—each stage
is potentially consequential, although it is likely that inertial forces and
the power of agenda-setting will apportion disproportionate influence to actors
involved at earlier stages. Still, it is quite possible that early-stage actors
will anticipate the preferences and needs of later-stage actors, thus mitigating any
sequence effects. Ratification by public referendum, for example, is a
downstream constraint that can hamstring leaders in an earlier stage who
recognize that their document must ultimately obtain public approval.
Actors
Perhaps the
most critical variable in constitution making has to do with which actors are
included in the process. Actors involved in constitution making can include
expert commissions, legislative bodies or committees, the executive, the judiciary, national
conferences, elite roundtables, transitional legislatures, specially elected
constituent assemblies, interest groups and nongovernmental organizations,
foreign advisers, and the public itself. Public involvement has become the
subject of particular attention in recent years and is encouraged by scholars,
governments, and international organizations. But not all constitutions involve
the public, and some are drafted by a handful of leaders
behind closed doors.
Certainly,
a central dimension on which constitution-making processes differ is the degree
of public participation. Because the constitution is the highest level of
lawmaking and provides the foundation for all lawmaking processes, it arguably
requires the greatest possible level of legitimation in democratic theory. In
an ideal world, one might desire universal consent over the rules of society, a
standard that is obviously impractical. Higher levels of participation are
presumed to restrict the adoption of undesirable institutions and to protect
prospective minorities in the democratic processes that are established.
Participation thus legitimates and
constrains, substituting inclusive processes for universal consent to make
effective government possible.
Public
participation in constitutional design often takes the form of a referendum on
the final document as a whole. Available data suggest a significant trend,
beginning in the early 20th century, toward seeking public ratification for
draft constitutions. Approval by referendum may be an increasingly popular mode
of public involvement, but it is clearly a limited one in that it involves only
a yes or no vote over a package of provisions. Since at least World War II, however,
public participation in constitutional design has become more direct and has
penetrated more deeply (or at least earlier) in the process. One common
approach is to involve the public in selecting those who will draft or
deliberate over aspects of the charter. The representative group may be a
constituent assembly elected expressly for the purpose or a regular legislature
that takes on the project in addition to other duties. Some constitutional
processes have experimented with more bottom-up methods of direct democracy,
such as the citizen initiative, in
which ideas can bubble up from civil society.
Still another mode of participation involves
direct consultation with the public or representative groups at various stages,
which might occur before, during, or after the drafting of the initial text.
The drafting phase seems to be especially crucial, given the effects of inertia
in the later stages of the process, but it is also likely to be the least
participatory, given the challenges of writing by committee, much less writing
by nation. Indeed, in some well-known cases, the public is excluded from the drafting
process and not consulted at all.
Of
course, actors may come from outside, as well as inside, a state’s borders. An
extreme case is that of the “occupation constitution,” a document drafted when
a country is under the control of a foreign military power. Such constitutions
are usually presumed to have less involvement on the part of local actors and,
hence, to be less legitimate. Some scholars
believe that international involvement creates disincentives to enforce the
constitution locally, as actors will strategically acquiesce to conditions
they have no intention of fulfilling simply to remove external oversight.
External influence, however, need not be as blatant as it is in the case of occupation
constitutions. Constitutional drafting often attracts international advisers
and interests, be they donors, creditors, interested states, or the United Nations.
The prospect of future membership in the European Union,
for example, led some eastern European countries to make modifications to their
draft constitutions at the behest of the Council
of Europe. Many accounts of foreign borrowing point to the decisive
role of influential consultants who appear to be part of a cottage industry of constitutional
advisers.
Constitution making is often undertaken during moments of crisis when states are at their most amenable to accepting foreign models and suggestions, and scholars have long noted a high degree of similarity across documents. The persistence of presidentialism in Latin America, the use of French and Westminster models of government in former colonies, and the use of national conferences in Francophone Africa are all examples of the diffusion of governmental forms.
Other
conditions
There are
potentially consequential aspects of the process of constitutional engineering
other than the identities of the actors involved. Among those aspects are the
circumstances that lead to the making of a constitution in the first place.
Conventional wisdom holds that constitution making is generally coincident with
a cataclysmic event of some kind, such as a war, a coup, an economic crisis, or
a revolution. In fact, some evidence suggests
that, although crises do frequently precede constitutional reform, the number
of constitutions drafted in noncrisis situations is probably
underestimated. Sweden’s
1975 reform of its 165-year-old constitution is a prominent example of
crisis-free reform. The various socialist constitutions, such as those in
the Soviet Union (1936
and 1977) and China (1982),
seem to follow the installation of new leaders, a practice that was often
justified by the Marxist view of evolution in stages. These different patterns,
reflecting various degrees of crisis or continuity, will
affect the process, creating an atmosphere of either urgency or deliberation.
The process
can also vary in terms of time involved. At one extreme, the secretive process
that led to Myanmar’s
(Burma’s) 2008 constitution took 17 years. At the other extreme, a small group
of American bureaucrats working
for the occupation authorities drafted the basic form of Japan’s 1947 constitution in
a little over a week, and the entire process, including elections, legislative
deliberation, and approval by the emperor, took a mere eight months. Both of
those cases are distant outliers. On average, constitution making takes about
16 months. Anecdotally, constitution-making processes involving either a very
short or very long amount of time seem to occur in non-democracies. Speedy
processes do not allow sufficient time for mobilization of the public and civil
society, whereas extended processes are unlikely to hold public attention for
the duration.
Another
dimension on which processes differ is the size of the deliberative body, an
issue that has also plagued those who design legislatures. The concern is that
large bodies—which have the advantages of minimizing deal making and assuring
representativeness—can be unwieldy and lead to collective action
problems.
Constitutions and their design have been central to the work
of political scientists since at least Aristotle’s
time, but scientific study of the rules that govern the process of
constitutional engineering has lagged. Speculation about the processes of
constitutional design and adoption is common, but, because those processes vary
along a number of identifiable dimensions, more rigorous analysis is possible.
