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| Index | E-mail | Resources |
June 1998 |
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| Index | E-mail | Resources |
June 1998 |
International Law 101
Introduction to International Law
When we started doing human rights activism, we knew very little about law and nothing about the interplay of international law and human rights. However, international law can be a very powerful tool in the hands of the human rights activist. Countries are subject to international law in much the same way that people are subject to domestic law. Invoking international law in a situation of human rights violations tells the country it should cease the violations because it must, not just because it wants to have a good public image. In this series we hope to let non-lawyers know what international law is and how to use it. We start by giving you an overview of the subject. Future issues will focus on specific human rights instruments.
International law is the law of nations. It imposes specific obligations and rights on nations, just as domestic law imposes them on individuals. Its purpose is similar to that of domestic law: eliminate chaos and the need for violence by clarifying how states should behave towards each other. There are controversies among legal scholars as to whether international law is “natural” in the sense that it exists beyond the outright acceptance of nations to be ruled by it, or whether it is “positive” and only applies to nations that have given their consent to its rule. At this point, however, these differences are immaterial. International law exists, it applies to a greater or lesser extent to all nations, and all nations must obey it.
There are several main “types” of international laws recognized by jurists as well as by the Statute of the International Court of Justice (an organ of the UN, empowered to settle disputes between nations). Treaties are agreements among nations as to how they will behave with respect to each other. Treaties can be bilateral, between two countries, or multilateral, among many nations. Most human rights treaties are multilateral (and they are called “convention” or “covenant”). Regardless of how they are called, they are binding on all nations that have ratified them. In multilateral treaties, countries are usually allowed to make “reservations” and “understandings” to specific articles. When they make a reservation, they are saying “we are bound by the treaty, but not by this article(s)”; when they make an understanding, they explain how they will interpret an specific article(s), and say they will only be bound by such an interpretation.
Countries can make reservations to most articles, although they are prohibited from making reservations that would be incompatible with the object and purpose of the treaty. For example, a nation ratifying the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment could not make a reservation that would allow it to torture people under certain circumstances. It is not always clear what happens when a nation tries to make such a reservation to a treaty; the treaty body empowered to interpret the treaty may reject the reservation, but it is unclear whether under those circumstances the reserving country is not bound by the treaty at all, it is bound by the whole treaty, including the article it tried to reserve, or something else happens. This may very well vary by treaty and will be discussed at length in a future column.
Countries must ratify a treaty before they are formally bound by it - this is usually done after obtaining permission from the government body empowered to give it (in the case of the US, the Senate must approve the treaty by a 2/3 majority). After a country has signed, but not yet ratified, a treaty, it must still do nothing that would be contrary to the aims and purposes of the treaty, but it is not bound by its specific articles.
There a number of human rights treaties at the international and regional (Europe, America, Africa) levels. We will take a look at many of these treaties in subsequent issues of Without Impunity.
In addition to treaties, countries are bound by customary international law and general principles of law. International customary law can be understood as the customs of states recognized as law, and it refers to the norms that states have recognized historically as binding them. The most obvious and important example of this is the norm of “pacta sunt servanta”, treaties must be obeyed. Nations have traditionally understood this as being so, and has thus become law. Most of the laws prohibiting crimes against humanity were born as customary international law; this includes the prohibitions against genocide, slavery and mass disappearances. It’s not necessary that all countries recognize a norm of international customary law for the norm to exist and bind them, it only needs to be the general consensus. Nations that object to a norm of international customary law when it’s being formed (but at no other time) are not bound by it. For example, the United States has repeatedly objected to any norms that would outlaw the death penalty, and thus if a customary international norm was formed prohibiting it, the US would still not be bound by it.
There are certain norms of international law that are so universally accepted, that they bind all countries. This “peremptory norms of international law” or jus cogens, as they are called, are a recent arrival in international law doctrine and are few in number, but they include some of the most heinous human rights violations such as the prohibitions against torture and genocide.
General principles of law, the final category, are principles so general that they are accepted throughout different legal systems. For example the principle of “res judicata” - which sets that once a matter has been definitely decided by a court, it cannot be decided again - exists in most legal systems and is considered a general principle of law. In the human rights context, the prohibition of torture is generally considered a general principle of law as most countries have similar legislation. General principles of law can also exist at the regional, rather than universal, level. For example, the right to remain silent when charged with a crime is probably a general principle of law in the Americas, as most nations recognize it in their constitutions, but it is much less clear that it would constitute a general principle of law internationally.
While most human rights are currently recognized by treaties - it is important to understand these bases of international law so as to be able to evaluate what these treaty obligations entail and that a country may be bound by the law, even when he has not ratified a given treaty.
