“What, then, is international law? I know of no better definition of it than it is the sum of the rules or usages which civilised states have agreed shall be binding upon them in their dealings with one another".
Lord Russell of Killowen, 1896
Any time an area of the law is defined by a last century British Lord with words such as “what, then, is....”, any well-trained lawyer would know to run for the hills; that the particular field of law is not clearly defined.
That is precisely the case with international law, aka the law of nations.
Another definition is:
“That body of rules and principles which States and other entities enjoying legal personality and operating on the international scene recognize as necessary for the maintenance of peace and good order among themselves, and habitually obey in order to maintain and preserve that good order".
Here is what we do know
► It is the aspiration of international law to develop a single body of rules to apply throughout the planet (pictured), first with respect to diplomacy and international trade, and then other relations, so that the same rules are accepted as binding by all states to govern their relationships to each other.
► International law goes back as far as man has formed political states. The Babylonians and Sumerians oft resolved their differences by way of treaties.The University of Pennsylvannia has a sample at ccat.sas.upenn.edu/humm/Topics/Contracts/treat01.html.
► International law has now evolved to the point where agencies such as the United Nations are mature and independent “law making” bodies, quotation marks because they do not make law in the true sense of the word. All they can do is assist by providing a secretariat for international treaty developments but this alone is significant as it is in the interest of states to resolve their disputes amicably and in an orderly fashion. Thus, the world is endowed with invaluable legal documents such as the 1977 Geneva Protocols on Humanitarian Law in Armed Conflicts.
► There is no bite to international law. As the American writer Leon Uris correctly pointed out in Exodus (1958), a novel about the creation of the state of Israel: "International Law is that thing which the evil ignore and the righteous refuse to enforce".
There is no bailiff, Sheriff or police station to call for enforcement purposes. The best that can be done is the striking of nations from the roster of trading partners or international agencies. This may be slowly changing as is now occurring with respect to war crimes and soon, it is hoped, with respect to major environmental offenses.
As was succinctly put by one Canadian author:
"Since there is no supreme sovereign in international law, for in the eyes of the law all states are equal, and there is no legislative body with authority to enact treaties, no compulsory judicial tribunal with power to issue a judgment in absentia or before which states are obliged to appear and lacking any international police force or other enforcing body,it is often claimed that international law lacks the characteristics of a legal system and cannot be regarded as law.”
On a domestic level, where a country has accepted and adopted an international treaty through domestic law, that international treaty would then be fully enforceable within that country. A good example of this is the Hague Convention on Child Abduction, which has been incorporated into the domestic law of many countries in which provides a standard process for the treatment of international child abduction cases.
For a real-life example of international law springing to life in a Canadian war crimes case, see Ventocilla v Canada 2007 FC 575 at decisions.fct-cf.gc.ca/en/2007/2007fc575/2007fc575.html.
► International law includes bilateral (eg. the 1989 Canada-USA Free Trade Agreement) or trilateral (eg. the 1992 North American Free Trade Agreement (NAFTA) at nafta-sec-alena.org/DefaultSite/index_e.aspx) treaties which are in force only as between the two signatories.
► Some parts of international law have such profound historical adherence and acceptance that they alone might constitute what might be called “universal international law” and would include, for example, the immunity of ambassadors or diplomatic staff.
► There is no mandatory world court, although there is an International Court of Justice is mandatory where the two states parties to the dispute have subscribed to the ICJ treaty.
► International law is recognized by the courts of most free and democratic societies and most law students will be required to train in these basic international law which will introduce them to the concepts of states and treaties and what to do when litigation involves parties or property property in more than one state.
The players of international law are not few.
For the most part, individuals have no standing although international law within the European Community is in the process of reviewing that principle.
States are and have always been and likely will always be the primary participants of international law. It is they who collaborate to create the agencies which propose international treaties which, once signed by individual states, becomes international law for those states. It is the financial and political support of states that sustains the creation and development of international law.
Theorists of international law argue that since international law is based on the consent of individual states,only can be subjects of International law. The ICJ treaty says that only “states” may be a party to litigation before it.
This sometimes raises political issues with respect to communities or distinct societies existing within a state such as the Canadian province of Québec. Québec must express itself internationally through the Government of Canada, just as Idaho or California must speak through the United States of America at the UN.
The Vatican or the “Holy See” has a special status that, in spite of having been annexed by Italy in 1870, other states have given the Holy See independent and accredited diplomatic status. The Holy See flapped its international law wings in the Lateran Treaty of 1929:
“The Holy See, so far as concerns the sovereignty belonging to it in the international domain, declares that it wishes to remain and will remain removed from the temporal competitions among other states and from international meetings convoked with such a purpose, unless the parties to a dispute make a unanimous appeal to its mission of peace, reserving to itself, however, the right to assert in every case its moral and spiritual power. In consequence, the City of the Vatican shall always and in every case be considered as neutral and inviolable territory.”
Thirdly, international agencies are in and of themselves obtaining standing in international law. For example, the ICJ will entertain and respond to applications for advisory opinions received from a number of international agencies, such as the United Nations or the World Health Organization.
Fourthly, a covert but powerful participant in international law are large international corporations who manage their interests either directly on international fora, such as the international standards organization, or indirectly through domestic agencies or the lobbying of government departments.
Resources, References and Further Reading: