WHAT IS INTERNATIONAL LAW?
International law is the universal system of rules and principles concerning the relations between sovereign States, and relations between States and international organisations such as the United Nations.Although international law is Sometimes or nation. see states, these are called ‘non-State
actors’ and include individuals, corporations, armed militant groups, groups that wish to secede or break away from a State, and other collective groups of people, such as minorities (ethnic, religious, linguistic) and Indigenous peoples.
The modern system of international law developed in Europe from the 17th century onwards and is now accepted by all countries around the world.The rules and principles of international law are increasingly important to the functioning of our interdependent world and include areas such as:
> telecommunications, postal services and transportation (such as carriage of goods and passengers);
> international economic law (including trade, intellectual property and foreign investment);
> international crimes and extradition;
> human rights and refugee protection;
> the use of armed force by States and non-State actors;
> counter-terrorism regulation (see Hot Topics 58: Terrorism);
> nuclear technology;
> protection of the environment; and
> use of the sea, outer space and Antarctica.
An important aspect of international law is resolving international disputes, but it is only one part. Like any legal system, international law is designed to regulate and shape behaviour, to prevent violations, and to provide remedies for violations when they occur.
DIFFERENCE BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW
International law is concerned with the rights and duties of States in their relations with each other and with international organisations. Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State.
International law differs from domestic law in two central respects:
1. the law-making process
There is no supreme law-making body in international law. Treaties are negotiated between States on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the United Nations is not a law-making body, and so its resolutions are not legally binding. However, UN Security Council resolutions to take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States: see UN Charter, Chapter 7.
In Australia, domestic law is made by legislation passed by the parliaments of the Commonwealth, Ad hoc means ‘for a particular purpose’ states and territories, and by or ‘as needed’.common law principles developed by the courts. Parliaments are the supreme law-making bodies with power to make the laws, while courts are empowered to interpret the law and apply it to individual cases.
SUBJECTS OF INTERNATIONAL LAW
A subject of international law (also called an international legal person) is a body or entity recognised or accepted as being capable of exercising international rights and duties.
The main features of a subject of international law are:
> the ability to access international tribunals to claim or act on rights conferred by international law;
> the ability to implement some or all of the obligations imposed by international law;
> to have the power to make agreements, such as treaties, binding in international law;
> to enjoy some or all of the immunities from the jurisdiction of the domestic courts of other States.
Although this is a somewhat circular definition, there are at least two definite examples of subjects of international law, namely, States and international organisations.While States are the main subjects of international law, and have all of these capacities, there are other subjects of international law. Their legal personality, their obligations and rights need not be the same as a State. For instance, the International Court of Justice has recognised some international organisations as proper subjects of international law.
In the Reparations Case 2 the International Court of Justice confirmed that the United Nations could recover reparations in its own right for the death of one of its staff while engaged on UN business. International personality was essential for the UN to perform its duties, and the UN has the capacity to bring claims, to conclude international agreements, and to enjoy privileges and immunities from national jurisdictions. It is accepted that international organisations are subjects of international law where they:
1.are a permanent association of States, with lawful objects;
2.have distinct legal powers and purposes from the member States; and
3.can exercise powers internationally, not only within a domestic system.
Examples of this type of international organisation are the European Union, the Organisation of American States, the African Union, Organisation of the Islamic Conference and specialised UN agencies: see p 13.3
The International Committee of the Red Cross, based in Switzerland, has a unique status in international law as an inter-governmental organisation as guardian of the Geneva Conventions of 1949 for the protection of victims of armed conflict. It is neither an international organisation nor a non-governmental organisation.