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The peaceful settlement of international disputes is a fundamental principle of international law, and a direct corollary of the prohibition on the threat or use of force. Both principles feature prominently in the 1945 Charter of the United Nations (UN Charter). They have been repeated on many occasions, including the UN General Assembly’s 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations and the 1982 Manila Declaration on the Peaceful Settlement of Disputes between States.
Prior to the 20th century it was quite legitimate for States to use armed force to settle their international disputes. Conquest was an accepted means by which States could acquire territory. Gradually, however, as the power and efficiency of weaponry increased, public opinion began to shift and formal attempts began to limit the legitimacy of warfare as a tool for dispute resolution. Even prior to World War I, in 1899 and 1907, conventions were concluded at The Hague restricting the right to wage war and seeking to establish peaceful dispute resolution mechanisms. The Permanent Court of Arbitration was established through these treaties, providing a neutral forum in which States could settle their differences.
A central feature of the international legal system is that States are the predominant actors within the system, and possess international legal personality. This raises issues as to who possesses international legal personality and what it is. As O’Connell notes: ‘Legal action is the index of juristic personality; only persons comprehended by the law can perform actions prescribed by the law.’ States possess international legal personality and are recognised legal actors in the international legal system. As a result, States are able to enter into legal relations with each other by way of treaties, possess certain international legal rights as bestowed under international law, and are capable of enforcing those legal rights in international litigation or of being the subject of a claim if they are derelict in meeting their international legal obligations. This in turn raises issues as to the characterisation of what are ‘States’ and how they are recognised under international law. Yet States are not the only entities with international legal personality and account needs to be taken of other international legal actors such as international organisations.
States, and the notion of ‘statehood’, have undergone significant evolution in recent centuries, and contemporary international law has had to keep abreast of these developments. While international law recognises that there are essential attributes to what comprises a ‘State’ for the purposes of the international legal system, there remain important political processes at play with respect to the recognition of States. During the UN era this question has assumed particular importance due to a number of factors. The first is that since 1945 the international community has witnessed an unparalleled growth in the number of States. This is simply evidenced by the growth in the membership of the UN, which has expanded from the original 51 members in 1945 to 193 members in 2013. This growth in the number of States within the international system can be attributed to a number of factors, of which the process of decolonisation has been one of the most significant.
What would the world be like without international law? We cannot really answer this question but we do know that the world relies on this body of law to deal with important and difficult issues that require cooperation among the States or nations of the world. Such problems include terrorism, the increasing spread of diseases, countries expanding their nuclear arsenals, reducing the flow of refugees and asylum seekers into neighbouring countries, and mitigating the potential of climate change. International law is commonly defined as the rules governing the legal relationship between States. International law provides a framework for understanding what rights and duties States have in relation to each other, and other international actors such as the United Nations (UN). This definition emphasises the role of States in establishing the legal relationships needed for solving many of their cooperation problems internationally. It creates a predominant role for States in establishing a normative way of dealing with issues of global significance. The ‘law’ in international law is traditionally a reference to rules or principles. These rules are seen as obligatory by virtue of the fact that States consent to being bound by them. It is normal to look for these rules in agreements which States sign with each other (ie treaties) or by examining the customary practices of States in relation to particular issues (ie customary international law).
The increasing impact and role of international law is also part of the phenomena of globalisation. In many areas of life, the actions or omissions of individuals or organisations may have impacts on someone outside of their country. The simple act of buying a new pair of sports shoes in a local shopping centre may contribute to the profits of a foreign multinational corporation and impact upon the lives of factory workers employed in a foreign manufacturing plant. These increasingly entwined local, national and international relationships are the basis for developing international relations and politics because countries or their governments have to cooperate to deal with transnational issues. This in turn shapes or stimulates how international law is received and created by States, which are its most important subjects.
Until the beginning of the 20th century international law made little effort to regulate the resort to the use of force by States in their conduct of international relations. Many international legal scholars up to that point conceded that war was a normal part of the conduct of international relations and that international law had little role to play in the decisions made by States to go to war. Nevertheless, during the latter part of the 19th century restraints on the way in which war was conducted began to develop. The 1899 and 1907 Hague Peace Conferences saw agreement reached on three 1899 Conventions and thirteen 1907 Conventions and accompanying Declarations, which placed limitations on how belligerent States conducted themselves during hostilities, including the weapons they could use. These Conventions and Declarations, often referred to as ‘Hague law’, were a key component in the early development of the modern law of armed conflict. However, it was not until after the end of World War I with the creation of the League of Nations that significant efforts began to be made to place constraints on the resort to the use of force. The Covenant of the League of Nations, found within the 1919 Treaty of Versailles, sought in art 11 to make ‘any war or threat of war’ a matter of common concern to the members of the League, while arts 12–16 promoted the peaceful settlement of international disputes, including through the Permanent Court of International Justice. As noted by Brierly, ‘although the renunciation of war under these Articles was not complete, they made it very improbable that an aggression-minded state would ever succeed in resorting to war without a breach of its obligations under the Covenant’.
One of the challenges of the international legal system is that of enforcement. While the municipal legal system has developed mechanisms for law enforcement, ranging from the police forces, the courts and prison systems, there is no equivalent in international law. That international law does not possess the same enforcement mechanisms as those which exist in municipal law is highlighted as a major point of distinction between the two legal systems. It is often said that in the absence of an ‘international policeman’ it is not possible to effectively enforce international law.
While it is clearly the case that the international legal system continues to face challenges with enforcement, the mechanisms which have been developed since the creation of the UN in 1945 have transformed the international legal system from that which predated the outbreak of World War II. Principal among these has been the establishment of the International Court of Justice (ICJ) as the judicial organ of the UN – it has the capacity to resolve international legal disputes and deliver judgments which are binding upon those parties to the case, and which may ultimately be subject to Security Council recommendations if a party ‘fails to perform the obligations incumbent upon it’. In addition, the Security Council also has significant powers under Chapter VII of the UN Charter to seek to ‘maintain and restore international peace and security’ and as part of that mandate the Council regularly adopts resolutions which are binding upon member States of the organisation and enforceable by way of various mechanisms, including economic sanctions.
International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.
Law-making is not a straightforward process in international law. There is no centralised structure or global government responsible for identifying certain policy directions and legislating accordingly. With the exception of decisions of the United Nations (UN) Security Council (SC) and more generally the European Commission, States have not agreed to being bound by resolutions or decisions of international organisations. International organisations and groupings of States like the UN General Assembly are no more capable of creating formal and binding legal norms than in diplomatic conferences that discuss and draft agreements for signature and ratification of States. Studying how international law is made is an integral part of this legal system. In Australia, the passage of a bill through the House of Representatives and the Senate, accompanied by parliamentary debate, is the required procedure for a piece of legislation to come into force as law. International law conferences that are organised for States are just one example of important negotiating processes whereby the terms of an international agreement are created to serve as binding rules. This chapter focuses on the various law-making processes and structures available for creating international law.
Jurisdiction refers to the ability of a State to make and enforce its laws. While often related to sovereignty, and intrinsically linked to its territory, jurisdiction can exist without a connection to territory. Jurisdiction can be held to exist in a variety of contexts, depending on the location of events, the nationality of participants or the surrounding circumstances, and will also indicate whether a State may be able to undertake enforcement action to uphold its law. This chapter will consider the nature of jurisdiction insofar as it affects persons, corporations, ships and aircraft, as well as the question of when States may seek to validly enforce their laws.
Types of jurisdiction
All types of jurisdiction may be divided into two basic types: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate an activity, and to prescribe certain behaviour. That is to say, prescriptive jurisdiction is the ability to make laws that can validly purport to regulate people and situations, regardless of their location. Enforcement jurisdiction is the ability of a State to validly enforce its law, through the exercise of executive and judicial power. That is, it is the legal validity of a State to arrest, try, convict and gaol an individual for a breach of its laws.
Since the first edition of this book was published in 2010 there have been continual developments in international law through State practice, new treaties and an expanding international jurisprudence developed by a growing array of international courts and tribunals. For example, in 2011 the United Nations (UN) Security Council adopted Resolutions 1970 and 1973 giving effect to the ‘responsibility to protect’ principle in order to protect the civilian population of Libya. In 2010 and 2012 respectively, the International Court of Justice handed down significant opinions on Kosovo’s unilateral declaration of independence and the issue of jurisdictional immunities. In 2012 the international community gathered to celebrate and consider achievements in environmental protection since the 1992 ‘Earth Summit’ in Rio de Janeiro, while in early 2013 the UN sought to respond to the security threat posed by North Korea’s nuclear ambitions. These developments have resulted in a continual thickening of international law, with the consequence that some gaps in the law have been covered, understanding of the law has been enhanced, and adjudication and enforcement of international law have added to a better appreciation and understanding of its capacity.
This second edition takes stock of some of these and other important recent developments in international law. Challenges such as climate change, crimes against humanity, human rights abuses, nuclear proliferation, piracy, resource management, self-determination of peoples, and transnational crimes such as people smuggling are considered. These challenges have caused States, international organisations and the international community more generally to reconsider some of the foundational concepts and principles of international law, and whether new approaches to these and other emerging challenges to the international order are required.
The rapid development of international law in the post–World War II period from 1945 onwards also coincided with greater reliance upon treaties as a source of international law. Treaties had always been recognised as a source of international law, and their status was confirmed in art 38 of the Statute of the International Court of Justice (ICJ Statute). However, it was the development of the United Nations (UN), with its emphasis upon international law and focus upon treaty-making as a means of not only peaceful resolution of disputes but also multilateral agreement between States on matters of common concern, that was the catalyst for a greater reliance upon treaties in the conduct of international relations.
The UN actively promoted reliance upon treaties as a means of developing international law, with the International Law Commission (ILC) tasked in its early years with the responsibility of drafting a number of treaties which were then presented for negotiation and consideration at a multilateral conference of UN member States. Through this process, international law rapidly developed in the postwar period of the late 1940s to 1960s in areas such as international humanitarian law, the law of the sea, and human rights. While these developments were occurring at the multilateral level under either the sponsorship of the UN or other developing international organisations, there was also a growth in bilateral treaty–making as States began developing their postwar economies and rebuilding their international relations across many different fields of interest. This phenomena in international treaty-making, at both the multilateral and regional level, was also gradually duplicated at the regional level as groups of States with shared regional interests came together to reach settlement upon matters of common interest. The 1959 Antarctic Treaty dealing with Antarctica and parts of the surrounding Southern Ocean, an area where Australia has significant interests including territorial claims, is a prominent example of a regional treaty concluded at that time.
International law establishes its own distinctive framework dealing with both the sources of international law and how that law deals with the relations between States. Accordingly, treaties regulate certain relations between States at either a multilateral or bilateral level and the obligations created under these treaties create certain levels of State responsibility by the treaty parties to act in good faith. While the international law frameworks regulating the relations between States are relatively well developed, the role of international law at a municipal level is equally important. This can be illustrated in various ways.
Human rights conventions recognise certain rights for citizens of a State. In some instances these rights may also reflect constitutionally entrenched rights of citizens. Often, however, these rights are both distinctive and universal in nature and may not be reflected in municipal legal systems. The issue which then arises is how to translate the international human rights obligation contained in the convention into municipal law. Likewise, under environmental conventions State parties may have obligations to preserve and protect certain designated wilderness areas. To properly give effect to these obligations it may become necessary to designate a protected area or park under municipal law. One consequence of this may be that future development of the area will be constrained as a result of municipal law seeking to give effect to the terms of an international convention. The UN and its various organs may create obligations for its member States through Security Council resolutions which impact at both the international and the national levels, thereby raising issues as to how these obligations are to be given effect domestically so as to ensure that the State remains in compliance with its international obligations.
States are not individuals, but rather are human-created entities that consist of people. Clearly a State can only commit a wrongful act in international law through individuals acting for it, on its behalf, or through being responsible for the behaviour of their citizens. State responsibility as an area of international law is most significant, but curiously it is still the subject of much debate as to its content. From as early as 1969, the International Law Commission (ILC) began working on the problem of State responsibility. The project to produce an international convention outlining the rules with respect to State responsibility proceeded through a number of drafts, a name change, and significant debate within both the ILC and the international legal community. The result was the eventual adoption by the ILC of the Articles on Responsibility of States for Internationally Wrongful Acts on 9 August 2001. While often referred to as the ‘Draft Articles’, reflecting the lengthy process of ILC deliberation over various drafts across nearly three decades, following the noting of the ILC’s work by the UN General Assembly in December 2001 the term ‘Draft Articles’ is no longer widely used. Nevertheless, the Articles on Responsibility of States for Internationally Wrongful Acts, while having the appearance of a treaty, are unlikely to ever become fully endorsed as part of a convention on State responsibility. However, most of the ILC’s Articles are widely accepted as being reflective of customary international law. They are a contemporary foundation for any consideration of State responsibility in international law.