what is general international law

Hello, I'm Christian Tomaschad, Professor Emeritus of Humboldt University Berlin, a former member of the International Law Commission from 1985 to 1996. I shall talk about the topic, what is general international law? General law sounds familiar to many lawyers' ears. In domestic settings, more often than not, codification statutes are divided into a general part and a special part. In criminal law, this has a long tradition, be it in France, in Germany, in Spain or other countries of the civil law tradition. In the general part, the concept of criminal offence is presented together with its consequences, of which punishment is the most prominent one. In the special part, the different offences are defined with all their specific characteristics. Civil codes, on the other hand, have mostly been framed in a different spirit. That there could be a general part containing rules to be applied in every sector of private relationships did not seem obvious to many legislators, given the vast variety of conduct to be regulated. A similar problem arises in international law. International law has become so multifaceted in our time that many people doubt its existence as a cohesive legal order. While still in the first half of the 20th century, states were considered to be the only subjects of international law, we are encountering today quite a variety of other bearers of rights and duties, in particular international organizations and individuals. Likewise, the subject matter of international law has greatly changed. At the height of classic international law, the understanding was that the scope of international law, on the one hand, and domestic law, on the other, was different. Accordingly, there could be no overlapping, they were totally separate from one another. Finally, attention was drawn to the obvious diversity in sources. Whereas in national systems, the parliamentary statute plays a pivotal role, international law really relies mainly on treaty and custom. All of these distinctions have undergone a slow but continual erosion process. The most conspicuous feature of change is the fact that today international and domestic law regulate many times exactly the same subject matters. This is true regarding the environment, e.g., and it is also a matter of common knowledge that human rights at different levels, national, regional, and universal, complement one another in a common quest for the protection of individuals. WTO panels render decisions on disputes with far-reaching repercussions on national policies. In sum, international law has become almost omnipresent. Even in the most remote countries, it raises its head, establishing signposts, grounding rights, or imposing obligations that affect the individual, mostly through implementing national legislation, but many times also in a direct fashion. It is this wealth's ratione materie which makes it difficult to identify general international law, i.e., rules that apply whenever a given situation comes under the reign of international law. In the jurisprudence of international courts and arbitral bodies, the term appears only occasionally. In the legal literature, opinions differ. Some take general international law as a synonym of customary law. Others disregard the formal source of the right or obligation, but apply the term to any rule that is addressed to every one of the main subjects of international law, i.e., states. Both approaches have their merits. We shall first turn to Article 38 of the Statute of the International Court of Justice, a provision which advises a court as to the legal rules it must apply when exercising its adjudicatory function. Article 38 does not mention general international law, but it still can be used as a first stepping stone in the search for that category of rules. The list of legal sources set forth in Article 38 begins with international treaties, which are in fact the primary instrument through which states regulate their mutual relationships. However, treaties cannot easily be classified as general international law. They are instruments of self-commitment. In order to be legally bound, states must voluntarily accept the relevant stipulations. It stands to reason that a bilateral treaty brings only rights and duties for the two parties concerned into being. It is inherent in the nature of treaties that third parties cannot derive any rights from a treaty concluded between other parties, and that they cannot be subjected to obligations against their will. The legal position does not even change in the case of instruments sometimes called world order treaties, i.e., treaties in whose effective implementation the entire international community has a vivid interest. Thus, the Treaty on the Non-Proliferation of Nuclear Weapons of 1968 is certainly of key interest for efforts to stabilize international peace. And yet, states enjoy full freedom either to accept or to reject it. There are still major gaps in the circle of parties, India, Pakistan, and Israel. The People's Republic of Korea joined the treaty in 1985, but withdrew from it in 2003. Accordingly, the Non-Proliferation Treaty has not succeeded in ushering in a general regime preventing the spread of nuclear weapons, a regime that would bind all states. On the other hand, there are some, very few, treaties that have indeed reached universal or quasi-universal applicability. The most prominent one of those is the Charter of the United Nations. In practical terms, with very few exceptions, the Charter has become an instrument that applies at world level to all nations of the globe. This is all the more important, since the Charter lays down the fundamental principles of the present-day international legal order. Sovereign equality of states, non-use of force, and non-intervention, together with peaceful settlement of disputes, are designed to ensure the basis of harmonious coexistence of all states, irrespective of sympathy or antipathy. Moreover, the Charter provides that all states must respect and ensure fundamental human rights. Lastly, Article 103 states that the obligations under the Charter shall take precedence over any obligations of the Member States under other international agreements. Thus, a groundwork of legal norms has arisen that has all the characteristics of a basic law, an international constitution that commands full compliance by all nations. Accordingly, the Charter constitutes a centrepiece of general international law. Of course, the problem remains to enforce these principles and rules in an effective manner. Some other multilateral treaties exist that have received universal acceptance throughout the world. The main examples in point are the four Geneva Conventions of 1949 on humanitarian law. Whenever an armed conflict emerges, the parties must abide by the rules laid down in those conventions. Because of the unanimous agreement supporting them, they are generally deemed to constitute, at the same time, international customary law. However, the number of international treaties having found such a positive echo is fairly limited. Even the International Convention on the Prevention and Suppression of the Crime of Genocide stands currently at a membership of no more than 140 states. Not infrequently, national parliaments are reluctant to ratify conventions that may bring with them obligations of a largely indeterminate character. Some very small states, on the other hand, are of the view that specific international treaties are of no interest to them. Thus, in particular, some island states, remnants of former colonial empires, have refrained from accepting the Genocide Convention. Not because they do not consider genocide as an egregious criminal offence, but rather because they believe that genocide could never happen in their territories. On the whole, treaty law remains mostly disparate, subject to many contingencies. Accordingly, treaties do not constitute the ideal foundations for general international law. In the list enunciated in Article 38 of the Statute of the International Court of Justice, the second position is held by international customary law. Pursuant to the definition given by the relevant clause, international custom emerges from a general practice accepted as law. Although regional custom may exist, the main form of custom is of a universal character. This might lead to a very simple conclusion. General international law is nothing else than the sum total of the existing rules of international customary law. This inference would be premature, however. Mostly, customary law is of a dispositive nature. In other words, states are free to establish, for their reciprocal dealings, other rules as they see fit. In such instances, customary law discharges only a secondary function. It will only become applicable if no answer to the question can be found in the conventional instrument concerned, and if that instrument permits recourse to the rules of customary law as a fallback position. The framers of a treaty may deliberately exclude such recourse. In the Tehran hostages case, which 30 years ago opposed the United States to Iran, the International Court of Justice referred to this configuration as a self-contained regime. Yet, customary law always remains in the background of any situation that falls to be considered pursuant to parameters of international law, although, as a matter of principle, it can be discarded, displaced, or removed. However, some rules of customary international law impose themselves under any circumstances, and can never be derogated from. These rules are called yuskoguns, or peremptory norms of international law. The existence of such rules was postulated already during the 19th century by writers who lived in the tradition of natural law. Until the great disasters of the two world wars from 1914 to 1918 and from 1939 to 1945, the general environment was not favorable to such restrictions on the treaty-making power of sovereign states. The governments of the big European powers were deeply impacted by a doctrine of the sovereign state that saw itself as the only arbiter over its international affairs. It was even less imaginable for them that consensual decisions of two or more states could be challenged as being contrary to higher norms of an international community. Still after the establishment of the United Nations, it was by no means self-evident that states would be prepared to accept the drawing of borderlines regarding their treaty-making power. When the International Law Commission proposed to include provisions to that effect in the planned codification treaty on the general rules governing international treaties, many critical voices arose. Eventually, at the Vienna Conference on the Law of Treaties in 1969, the last stage in the codification process, critics argued, not so much in a perspective of almightiness being a natural ingredient of sovereignty, but rather articulated anxieties with regard to the stability of treaties. Finally, these voices could be overcome and Article 53 was approved, which provides that the treaty conflicting with the rule of just covenants is void. Some states, however, keep their distance from the Vienna Convention to this very day, 40 years after the Vienna Conference. France is the leading power in that group of states. It has not accepted the concept of just covenants, originally out of fear that the use of nuclear weapons for the purposes of national defense could be hampered by legal constraints. Currently, France is reconsidering its position without ever having come out definitively in favor of a ratification of the Vienna Convention. Notwithstanding these misgivings, by leading powers, legal doctrine and judicial practice have almost unreservedly embraced the concept of just covenants. Even the International Court of Justice, which for many years had shied away from mentioning the taboo word, modified its attitude in 2006, whereas beforehand it confined itself to speaking of intransgressible principles of international law. It now uses the term just covenants without any great hesitation. References to just covenants can also be found in the jurisprudence of the European Court of Human Rights and the International Criminal Tribunal for the former Yugoslavia, for instance. In the 40 years since its official consecration, just covenants has advanced far beyond the narrow confines of its original connotation as a ground entailing invalidity of treaties in case of conflict. It is now seen as a rocher de bronze which stands in the way of any kind of conduct. Also, unilateral acts of factual conduct are deemed to be susceptible of conflicting with the just covenants norm. The scope of applicability, ratione materie, has considerably widened. Accordingly, just covenants seems to be another key component of general international law. The major difficulty with just covenants is that its substantive content remains fairly vague. Article 53 of the Vienna Convention refrains from providing an accurate definition. In a rather circular fashion, just covenants is identified as a norm accepted and recognized by the International Committee of States as a whole, as a norm from which no derogation is permitted and which can be modified only by subsequent norm of general international law of the same character. Notwithstanding this unsatisfactory description, general agreement exists as to the object and purpose of just covenants. It is designed to protect basic values of the international community, values which are indispensable for the defense of elementary standards of civilization and human interrelationships and peace among nations. What this means in specific detail remains controversial. However, only the core of just covenants is clearly defined. Genocide counts among the crimes amounting to a violation of a just covenants norm and a policy of torture and disappearances amounts likewise to a crime coming within the purview of just covenants. Finally, it is also true that a policy intent on partitioning a third country, dividing it up among the members of an inactionist alliance, as it happened to the detriment of Poland at the end of the 18th century and again in the middle of the 20th century, would also violate just covenants. Article 38 of the statute of the International Court of Justice lists additionally a third source of international law, namely the general principles of law recognized by civilized nations. To date, these principles, which constitute a synthesis of principles common to the legal orders of the member states of the international community, have been confined to a marginal role in the case law of the International Court of Justice. They are generally considered as having no other function than to fill in gaps left by treaties and customs. This is the result of a misconception which can be traced back to a world where the diversity of national cultures was so tremendous that little could be found that was common to all of the nations of the globe. Within that narrow frame of mind, one can read in academic works, even today, that no more can be gleaned from the general principles than that abuse of legal positions and conduct incompatible with bona fides are prohibited. Through such trivial statements, the general principles are almost rendered nugatory. In our time, the globalization has intensified intercourse at all levels, and where a common understanding of belonging to one international community has emerged, that almost contemptible treatment of general principles should be reversed. A good example of a much better understanding of the concept is provided by the case law of the Court of Justice of the European Communities. The Court has indeed inferred answers to many issues of general administrative law which were not covered by the applicable treaty regime from the practice of the member states of the European Community. Furthermore, it has developed a doctrine of fundamental rights from the constitutional traditions of those states. Its harvest in scrutinizing their domestic legal systems has proved extremely rich. In fact, it would seem obvious that within a group of nations united under an overarching structure, the common features of their legal foundations must be included in the general legal framework of their orientation. At the end of this first round of stocktaking, our conclusion is that the UN Charter, as well as Jus Coggins, pertain to the core substance of general international law. Customary international law and general principles also belong to its components, with the caveat, as just outlined, that the crucial function of general principles remains to be rediscovered and highlighted. As suggested earlier, instead of approaching the search for general international law from the classification scheme of Article 38 of the Statute of the International Court of Justice, one can alternatively choose a somewhat different point of departure. Such change of perspective seems to be all the more appropriate, since it is extremely difficult properly to assign a given rule to one of the three classes mentioned. Is the right to life, to take just one example, a rule under treaty law? This answer is certainly supported by the general reference of the UN Charter to human rights and by the protective provisions in all of the major human rights treaties. Is the right to life at the same time a rule of customary law? This is what all the treaties on human rights are saying, without, however, explaining according to what methods they have reached this answer. Lastly, it is certainly not far-fetched to maintain that the right to life can also be considered a general principle of international law, since all modern constitutions embrace the right to life as a core principle of their legal framework. Prominent writers assign indeed human rights essentially to the general principles. What can be the guidelines of this second classification scheme? Three criteria seem to offer themselves. First of all, there are the axiomatic premises of the entire edifice of international law. Second, this edifice has certain systemic features that derive almost automatically from the premises. And third, the present-day international legal order is today a value-laden order, not just a toolbox suited to serve for the furtherance of any objectives, irrespective of their substantive content. The first category, axiomatic premises of the international legal order, comprises above all the principle of sovereign equality of states. Sovereign equality is mentioned in Article 2, Paragraph 1 of the UN Charter, but it certainly predates the conclusion of the Charter, since it was on the basis of sovereign equality that the member states of the world organization concluded the Charter. Should they decide one day to scrap the United Nations, sovereign equality would persist. And it also precedes quite logically the corresponding rule of customary international law, since it has not grown incrementally by practice that has piled up layer after layer. State practice is relevant in looking for a binding rule because states are, according to our present-day concept of the world, of humans the authoritative voices of their peoples. In this sense, the axiomatic premises of the international legal order are necessary, indispensable principles. Without them, the international legal order would be inconceivable. The second class of systemic features of international law encompasses, in particular, the law of treaties and the law of state responsibility. Pursuant to our basic assumption that sovereign states are the main building blocks of the international legal order, lawmaking can only take place through the mutual adjustment of the wills of states, since there is no natural superior authority. To enter into a treaty means accepting their bindingness. If treaties were not binding, they would make no sense. Of course, not all the details of the legal regime of treaties can be deduced from the basic premises, but to a great extent those rules were framed following a deductive method, not so much by looking for the relevant state practice which, however, was also taken into account. It is highly significant that the provisions of the Vienna Convention on the Law of Treaties are deemed to be generally applicable without much regard to its status of ratification. The very simple and straightforward explanation is that the Convention as a whole reflects international customary law. Similar considerations apply to the law of state responsibility. Given that, according to the basic concept just exposed, international law is binding, certain consequences must by necessity flow from a breach. The duty of reparation is a natural response. Again, not the entire sophisticated system of reparation can be inferred from that premise, but its structural data cannot be changed at will. Here also it is significant that the regime, elaborated by the International Law Commission in 2001, was deemed not to need formal ratification. The General Assembly simply took note of it. According to the opinion of the International Law Commission, their proposals are the reflection of the structural logic inherent in the topic, supplemented here and there by some references to the actual practice of states. Accordingly, because of their inevitability, the law of treaties and the law of state responsibility pertain to the class of general international law. To be sure, states may, by mutual agreement, establish different regimes, but if no such special agreements have been concluded, the general rules will fill in the gaps. Lastly, with the advent of human rights under the UN Charter and the later adoption of an International Bill of Rights, the general panorama of international law has profoundly changed. Deliberately, the Charter speaks in its preamble of the dignity and worth of the human person. These statements of principle have been developed and specified in the so-called International Bill of Rights, the Universal Declaration of Human Rights, as well as the two international covenants of 1966, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Concomitantly with the stipulations of conventional rights, customary law has grown. In this regard, the classification carried out by Article 38 is rather unsatisfactory. The International Court of Justice has painstakingly defined the criteria which elevate factual conduct to rule of law. Its definition is fine with regard to classic interstate relationships where, e.g., borders have to be determined or the treatment of diplomatic agents is an issue. In such instances, the real practice can still be empirically observed, notwithstanding the fact that by now the international committee represented at the United Nations comprises 192 states. In the field of human rights, by contrast, it is outright impossible to make exhaustive empirical findings about the conduct of 192 states vis-à-vis their citizens. How then can we learn empirically what norms of customary international law have emerged? Listening to the annual reports of Amnesty International, one would have to come to the conclusion that human rights do not exist at all. In those reports, the negative practices largely outweigh the positive aspects. A little trick helps to some extent. It can be argued that as long as a certain evil practice is denounced as unlawful, as an unfortunate encounter of circumstances, or as a bad accident, it does not receive the legal blessing of opinio iuris. But this line of reasoning cannot explain where we find the substance which we use as a yardstick. It can only serve to head off the destruction of an established rule. In reality, legal reasoning follows a totally different course. Neither academic authors nor international judicial bodies embark on collecting evidence from everywhere. They base themselves on the Charter of the United Nations and the International Bill of Rights in taking the stand that the international community has set a firm standard of elementary human rights, especially the right to life, holds a central position because of its importance for peace and security, nationally and internationally, and because of its vital significance for the individual. This is more or less independent of the factual circumstances, whether the state concerned has ratified the relevant international treaties or not. The general assumption is that, with the International Bill of Rights, a constitutional framework was laid down within which the entire gamut of rules of international law should be interpreted and implemented. This has little to do with Jules Coggins. Jules Coggins covers only a small sector of forbidden conduct, but the right to life is everywhere, like the right of liberty and the right to physical integrity. Even when conduct does not reach the level of a Jules Coggins violation, it can come into conflict with this general constitutional background of international law. Then, an effort has to be made to harmonize the special rules with the constitutional framework and its human rights components. Just one example may suffice to illustrate our thinking. The International Court of Justice has made clear that, in armed conflict, the right to life as a human right does not disappear, notwithstanding the fact that essentially armed conflict is governed by international humanitarian law. Pursuant to the rules of that branch, a license to kill is acknowledged. Combatants may kill their counterparts on the side of the enemies. The approach of the court means that in the interpretation and application of international humanitarian law, special consideration must be given to the legitimacy of the traditional rules, which are largely permeated by the idea that in armed conflict, loss of human life is inevitable. Although this assertion cannot be contested, it is imperative, in light of the right to life, to reconsider the scope and meaning of many of those rules. Today, so-called collateral damage is generously accepted under the auspices of military necessity. Yet, the recognition of the right to life impels anyone involved in making and implementing the law to check whether the borderlines between life and death have been drawn correctly by international humanitarian law, according to its traditional understanding. Human rights as a constitutional background of the present-day international community is also exemplified by the procedure of universal periodic review. Under this procedure, introduced by the Human Rights Council, every state member of the United Nations will, at regular intervals, be reviewed by its peers as to its human rights practices, irrespective of whether it has ratified the two international covenants of 1966 or other key instruments. The practice may be less satisfying than the design, but the concept stands firm. No state can escape the general obligation to respect and ensure human rights. Our short analysis has shown that the concept of general international law has not yet received entirely firm contours, but it has sharpened our perception of the systemic structure of international law. Modern international law cannot be easily tied to the pro-Christian bed of Article 38 of the Statute of the International Court of Justice. The more legal reasoning leaves the rigid categories of Article 38, the more state consent as the basis of international law gets under pressure. In fact, international law is increasingly handled by international courts and other autonomous bodies. Accordingly, states are progressively losing their dominant influence over the shaping of international law. This development is not without its dangers. However, in the age of globalization, a shift from sovereign unilateralism to collective decision-making seems almost inevitable.