Quite often, when I tell people that my academic interest is public international law, I get a response along the lines of: “That sounds interesting! [brief pause] What is public international law?” Since this is one of my first OpenThink blogs, I thought it would be fitting for me to address this question.
Simply put, public international law is the body of law created by countries (referred to as “states” or “States” in the context of international law). Historically, it regulates the relationships between states or, if touching on domestic matters, it helps to harmonize domestic approaches to issues that states have sought to regulate, to varying degrees, internationally. (In contrast, “private” international law—also less confusingly known as “conflict of laws”—is the law that determines which country’s law will apply to cross-border activities or disputes involving persons or “non-state actors.”) For the sake of simplicity, from now on, I will refer to public international law as simply “international law.”
Over time, many specialized areas of international law have developed, including, for example, international human rights law, international trade law, international environmental law, and the law of armed conflict.
While an argument may be made that this is shifting, international law has traditionally been state-centric, which is reflected by the fact that states are the predominant authors and subjects of international law. In some ways, this means that international law is created by states and (very often, but not always) for states. A notable exception to the latter aspect is international human rights law, which creates rights for individuals and groups of individuals. However, even then, the state still has a necessary role to play, as international human rights law imposes obligations on states to respect the rights of individuals who are subject to their jurisdiction.
States as the authors of international law
It falls to states to create international law because there is no global legislature to legislate or a world court to judicially determine the rules of international law. How international law is formed highlights the necessity of state consent, which, as I explore in more detail below, is important to keep in mind when thinking about international legal issues. State consent to the rules of international law is important because—at least in theory—all states enjoy sovereign equality within the international system. This means that they are supposed to be equal internationally and are supposed to be free to organize their internal affairs without undue interference from other states (albeit subject to any rules of international law that may constrain their actions).
The fact that states are the authors of international law is reflected in the primary sources of international law: conventions (also known as treaties) and customary international law. Treaties are international agreements among states. Somewhat like a contract among two or more states, treaties are focused on a certain issue and lay out the rules to which states have agreed regarding the subject matter of the treaty. The necessity of state consent to international law is illustrated through how treaties operate: a treaty is only binding on states that have signed and ratified it. Even then, unless the treaty provides otherwise, the treaty-based rules are only binding with respect to the mutual relations of states that are party to the same treaty. Finally, as long as it would not defeat the purpose of the treaty, states are able to make formal and public “reservations” to treaty-based rules, through which the state goes on the record that it refuses to be bound by a certain aspect of a treaty.
The second primary source of international law is customary international law. Customary international law is created by what states do and why they are doing it. Rules of customary international law arise when there is sufficient uniformity of practice among states (known as “state practice”) accompanied by “opinio juris sive neccessitas,” which is when the state undertakes the practice with the belief that the law obliges (or, in some instances, does not prohibit) the act or omission of the state in question. Once formed, these rules can have sweeping effect, as customary international law is generally binding on all states regardless of whether a specific state has engaged in the practice underlying the rule. An exception is when state is a “persistent objector” to a rule of customary international law, which means that the state has consistently indicated that it does not consider itself bound by the rule. In other words, the state’s actions have shown that it does not consent to the rule in question.
Some rules of international law fall into the category of “jus cogens” (or “peremptory norms”). These rules may be considered the pinnacle of international law, as they are binding on all states and states may not lawfully deviate (or “derogate”) from these rules. Unlike regular customary international law, states cannot contract their way out of jus cogens norms through treaties and they cannot persistently object to a jus cogens rule. In addition, while customary international law may be subject to change in response to changes to state practice, jus cogens norms can only be displaced by another jus cogens norm. (Yes, such changes can be confusing and difficult to realize.) While there is a measure of debate regarding jus cogens, they are generally accepted to include things like the international prohibitions against crimes against humanity, torture, genocide, slavery, piracy, and the aggressive use or threat of force internationally.
The importance of state consent to international law is reinforced by the fact that court decisions and “the teachings of the most highly qualified publicists” (i.e., leading international law academics) are “subsidiary” or secondary sources of international law. As such, while these sources can help with identifying and interpreting rules of international law, they do not create international law. Take, for example, the International Court of Justice, which is often referred to informally as the “World Court.” While a decision of the Court may be influential in future cases, they are technically only binding on the states that are directly involved in the case.
The Peace Palace, seat of the International Court of Justice, the Hague, Netherlands. The Court is the principal judicial body of the United Nations.
Photo by United Nations Photo on Flickr, CC BY-NC-ND 2.0
Underscoring the importance of state consent, the ICJ only has the jurisdiction to hear a dispute between states where both states have consented to being subject to proceedings at the ICJ. This requirement can severely curtail the cases that the Court is empowered to hear. The ICJ also has the jurisdiction to issue “advisory opinions” to the United Nations and its various sub-organs; however, these opinions are not strictly binding even though they often play an important practical role in clarifying and developing international law.
States as the subjects of international law
As noted above, states are both the authors and, generally, the subjects of international law. States are the subjects of international law because the law primarily gives rise to internationally binding obligations for states that restrict the actions that one state may lawfully take vis-à-vis another state (or, in some cases, individuals or groups of individuals).
Increasingly, however, there is a greater capacity for persons (in both the “natural” sense with individuals and the “legal” sense with transnational corporations, international organizations, non-governmental organizations, etc.) to act globally. The ability to act globally, however, does not result in these non-state actors becoming automatic subjects of international law with enforceable international rights or the ability to bring claims against states. Underscoring, again, the historical primacy of states in international law, the extent to which non-state actors may be considered subjects of international law or enjoy enforceable international legal rights depends on the extent to which states have granted non-state actors such rights through treaties or customary international law. As a result, international organizations—like the United Nations—are created by treaties and must operate within the confines of the powers that states have granted to them.
I should note that there is a potential shift underway with the possibility for transnational corporations (and others) to be bound by some aspects of international law, with the Supreme Court of Canada recently recognizing the possibility for Canadian companies to be held liable in Canada for violations of customary international law overseas. If this legal development comes to fruition (which remains to be seen and could be unlikely to happen), it could have particular implications for the global mining industry, as a majority of the world’s mining companies are headquartered in Canada.
State consent, self-interest, and the limits of international law
As noted above, how international law is created underscores the state-centric nature of international law. I believe this is an important aspect to highlight because it may help to explain some of the perceived shortcomings of international law that are reflected in the questions that people may ask when thinking about international law and legal issues. Such questions could include:
– Why is there no universal prohibition on the development and stockpile of nuclear weapons?
– Why do we not have internationally binding legal limits on greenhouse gas emissions that, if achieved, could actually prevent dangerous and irreversible climate change fuelled by anthropogenic greenhouse gas emissions?
– Why cannot current high-ranking state officials be held civilly or criminally liable in the courts of another country for ordering or directing acts of state-sponsored torture or terrorism?
– Why hasn’t the International Criminal Court prosecuted anyone for the war crimes that have been committed in the now nine-year-old Syrian civil war?
– Why isn’t the UN more than a useless talk fest? (This one is inspired by real life; I had to bite my tongue a few years ago after overhearing a first-year law student characterize the UN as a “useless talk fest” to another student in a legal research and writing class I was teaching.)
At the risk of appearing somewhat cynical, a short answer to these questions could be that the international community of states has been unable to agree to international rules to make these things happen.
This is because, as discussed above, international law is created by states. As a result, the content of international law may be affected by politics and state self-interest. In some instances, the inability for states to create rules that may appear to be “common sense” from an ethical or moral perspective may be traced to the assessment by states that it is not in their interest for international law to develop in a certain manner. Is there, for example, a compelling moral case for Canada to be one of only two states in the world to allow civil claims against states that sponsor terrorism? Absolutely. Does allowing these claims to proceed violate customary international law? Most likely—and chances are they will continue to do so because states have strong reasons to not allow these claims.
The role that state self-interest may play in the development of international law is unavoidable because, at its heart, international law requires state consent. This, in turn, necessarily requires an underlying willingness of states to limit their freedom of action. Where the limit of this willingness is reached, we often reach limits of international law.
That is not to say, of course, that the international community of states has been unable to create international law or international institutions that transcend state self-interest. Consider, for example, the fact that international human rights law exists and that states have created, among other enforcement mechanisms, several international courts to hear human rights claims by individuals against states, including the European Court of Human Rights and the Inter-American Court of Human Rights. And, although they are not necessarily direct authors of international law, it is also important to keep in mind the role that civil society and non-governmental organizations can play in the development of international law. The International Committee of the Red Cross is a prime example of this, as it has played and continues to play an important role in the development of the law of armed conflict (aka “international humanitarian law”). (If you ever want to learn more about the law of armed conflict, check if the Canadian Red Cross is hosting a conference near you or virtually. Public education about the law of armed conflict is part of its work).
There is no shortage of commentary on how international law ought to be, and while I enjoy thinking about how international law could be more effective and fair, I think it is important to remain mindful of the law as it is—and, critically, why the law is as it is. Keeping in mind the general necessity of state consent to create international law—and the motivation that state self-interest may play—can help with understanding the current limitations of international law. Hopefully, once we understand why limits exist, we may be able to start suggesting effective reforms.
Given the necessity of state consent to the creation of international law, I believe that state commitment to international cooperation and the international system is critically important to overcome global challenges—including future pandemics. Using international law to solve problems requires international cooperation; a firm commitment by states to the international system; and, in some instances, a commitment to ideals that transcend state self-interest. Without these things, the potential for international law to be a force for positive change may be diminished. Withdrawing from an international institution or disregarding international law due to perceived shortcomings or failures will usually not help to create a more just, fair, or responsive international system. Rather, when states turn their backs on the international system and the rule of law, they risk undermining our collective ability to address global challenges.
Header photo by Kyle Glenn on Unsplash
