Consider now what it meant to establish, for example, an international legal prohibition of torture. Torture was a common and legal method of interrogation before the seventeenth century. A legal prohibition of torture would mean that governments are obliged by international law not to allow their officials to use torture. How did an international legal norm prohibiting torture develop? What were its effects?
Subjects: Who makes international law and to whom does it apply?
You have seen already that traditionally only states (for historical reasons also the Holy See/Vatican and the Maltese Order) were subjects of international law and bearers of privileges and obligations. Privileges included sovereign status, immunities, jurisdiction or membership in international organisations, for example. Obligations towards other states arose from voluntary contracts, from the principle of non-intervention or from responsibilities for wrongful acts.
The status of a sovereign state implied full membership in the international society of states. It is a contentious issue in international law whether a territorial entity gains the legal status of a sovereign state depending only on a number of factual criteria (such as the existence of a population, territory, effective government and capacity to enter into international relations) or whether this requires also a formal recognition by other states. Already the criteria of statehood are contentious, and in practice it is not always easy to determine whether all conditions are met. In addition, for political reasons states have sometimes recognised other states that did not fulfil one or more criteria of statehood, or they have not recognised states despite them fulfilling all criteria. After the break-up of the former state of Yugoslavia, for example, Kosovo declared its independence from Serbia in 2008. Serbia has not formally recognised Kosovo as an independent sovereign state. Neither have a number of other states such as Russia, China and Spain, which all try to control movements for regional independence or autonomy in their own territory.
Coming back now to the example of the prohibition of torture, which options did individuals have under international law to seek redress for acts of torture? If a foreigner was tortured by officials of another state, the home state could complain to the latter. The individuals themselves, however, could do very little under international law, for individuals were not subjects of this body of law. Even worse, if a state tortured its own citizens, this was an internal matter in which other states could not intervene.
Sources: How is international law made?
The most important and most concrete sources of international law are bilateral and multilateral treaties. Multilateral treaties are usually prepared during long negotiations at diplomatic state conferences where a final treaty text is adopted and then opened for signature and ratification by states. When an agreed number of states have ratified the treaty, it enters into force and becomes binding on the member states.
Article 38 of the Statute of the International Court of Justice lists as sources of international law on which the court may rely in its decisions: treaties, customary international law, general principles of law that exist in most domestic legal systems (such as behaving in ‘good faith’) and, as a subsidiary means, also judicial decisions and scholarly writings.
Customary practices are even today still a common and highly contentious source of law. Customary law refers to the established practices of states that are supported by a subjective belief to be required by law. If a customary rule exists, it is binding on all states except where a state has persistently objected to this rule. You can imagine already that the deduction of legal rules from social practices and subjective beliefs poses many difficulties and bears many insecurities regarding proof and actual content. Also during diplomatic conferences that prepare a treaty text, many difficult compromises are brokered. To paraphrase a saying that is often attributed to Otto von Bismarck, laws are like sausages. It is better not to see them being made.
In the context of our example of the prohibition of torture, imagine the following scenario: state A has signed and ratified the International Covenant on Civil and Political Rights, which contains a prohibition of torture in Article 7, and is also party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This country fights terrorism and brings suspected terrorists to secret prisons in countries which are not party to any of the above conventions. In these prisons, the suspects endure intense interrogations which include sleep deprivation, waterboarding (causing the sensation of drowning) and other measures.
As an international lawyer faced with this case your starting point would be the aforementioned international treaties that contain a prohibition of torture. You would need to determine whether the interrogation measures amount to torture. Here, the codified definition in international treaties and the interpretation of this definition in previous cases can give you important guidance. You would also need to determine whether the particular state in question has ratified the pertinent treaty or treaties. In our example, the situation is complicated by the fact that both treaties limit the territorial applicability of the treaty to all individuals within a state’s territory and subject to its jurisdiction. Hence one could argue that instances of torture on the territory of non-state parties do not fall within the ambit of the treaties. Also a counterargument is possible. One could make a case for the extraterritorial application of the treaty if the acts of torture on foreign soil were effectively controlled by a state that is a member to the treaty.
You would then proceed to see whether a customary rule exists that prohibits the use of torture. Even if the treaties prohibiting torture have not been ratified by a state, you could argue that the treaty has codified an already existing customary rule or, if a large majority of states has ratified the treaties, that this is evidence that a customary rule has been formed. In light of horrendous historical experiences, you may also argue that the prohibition of torture is of such fundamental importance that today no derogation from this rule is permitted. In other words, you would argue that the prohibition of torture is a peremptory rule of international law (ius cogens – peremptory law) that does not permit any exception.
You can see now how the early idea of state consent as a necessary requirement for an international rule still permeates these argumentations. The main difficulty often consists in establishing state consent or, at times, in constructing alternatives for it.
Global organisation: The United Nations era
The end of the Second World War and the end of the Cold War are probably the most significant historical watersheds in the development of recent public international law. The end of the Second World War in 1945 led to the establishment of the United Nations and the rapid development of several areas of international law, including human rights law, international criminal law and international economic law.
The United Nations is the most important global intergovernmental organisation with major offices in New York, Geneva, Nairobi and Vienna. It was established with the principal aim to ensure peace and security through international co-operation and collective measures. As of 2017, it has 193 member states. Article 2 of the UN Charter, the founding treaty of the United Nations, confirms as guiding principles the sovereign equality of the member states, the peaceful settlement of disputes, the prohibition of the use of force and the principle of non-intervention.
Delegates of all member states meet once a year during the General Assembly to discuss pertinent issues of world politics and vote on nonbinding resolutions. The Security Council is the highest executive organ of the United Nations in which the representatives of ten selected member states and five states with permanent seats decide on issues of peace and security through binding resolutions, which may result in economic sanctions or even military actions. The ‘permanent five’ (the People’s Republic of China, France, Russia, the United Kingdom and the United States) hold the privilege of a veto right allowing them to prevent the adoption of resolutions of the Security Council on any substantial (as opposed to procedural) issues. Major reform initiatives of the composition or voting procedures of the Security Council have been unsuccessful so far. This taints the effectiveness and the democratic legitimacy of the Security Council and, especially during the Cold War, it severely constrained the Security Council as two of its key members (the United States and the Soviet Union) were engaged in an ideological conflict. Politically, however, the right to veto was a necessary concession to ensure the participation of the most powerful nations in a world organisation.
Numerous principal and subsidiary UN organs and specialised agencies engage in the application, enforcement and development of international law. This work comprises, for example, classical legal work in the International Law Commission and special committees of the General Assembly, practical work in the field and diplomatic efforts by Offices of High Commissioners and their staff, or actions taken by the Security Council. All of these bodies, and many more, promote and shape international law in various ways. In the International Law Commission, for example, a group of experts create reports and drafts on specific topics that are then submitted to a committee of the General Assembly and can provide an important basis for later treaty negotiations. The Offices of the High Commissioners for Human Rights and Refugees do important work in the field where their staff endeavour to uphold international law often in crisis situations. Their experiences influence also subsequent interpretations of international law, for example, regarding who qualifies as a refugee. The United Nations Educational, Scientific and Cultural Organization (UNESCO) fulfils a crucial function in disseminating knowledge about international law by promoting education and research on human rights, justice and the rule of law.
Community and governance: The changing structure of international law
The existence of a world organisation, the legal prohibition of the use of force, the establishment of a system of collective security and the protection of human rights have caused fundamental changes in the international legal order. International lawyers and politicians speak frequently of the ‘international community’ that co-operates to pursue community interests which cannot be achieved by single states alone. These community interests may range from environmental challenges and cultural heritage to issues of human security.
How much the meaning of sovereignty has changed, one can see, for example, in the principle of a shared ‘responsibility to protect’ (R2P). According to this principle, states have an obligation to prevent gross human rights violations not only at home but also abroad, if necessary through forceful United Nations measures. The protection of the individual from severe atrocities has thus become a matter of national, regional and international concern. This means that states can no longer claim that gross human rights violations are internal matters and that they are protected by their sovereignty.
Today there are countless actors that engage in the making, interpretation, use and enforcement of international norms. States still are the major international actors and the principal makers and addressees of international norms. Yet the bureaucracies of intergovernmental organisations and their organs, numerous international, regional and domestic courts and tribunals, non-governmental organisations and even groups or single persons (socalled ‘norm entrepreneurs’) engage in the pronunciation, interpretation and dissemination of international legal norms, standards and other types of ‘soft law’. And, they often do this without, or even against, the will of states. For example, a NATO-led intervention in Kosovo in 1999 was executed without the authorisation of the UN Security Council. NATO (the North Atlantic Treaty Organization) is a collective security organisation, effectively a military alliance, of Western states. It was originally created to help contain the spread of communism in Europe during the Cold War but has endured in the years since. Its actions in Kosovo contributed to the establishment of the International Commission on Intervention and State Sovereignty which was a private expert group under the auspices of the Canadian Government to respond to UN Secretary-General Kofi Annan’s challenge on how to respond to large-scale violations of human rights and humanitarian law. The commission produced a report on ‘The Responsibility to Protect’ to which both the UN Security Council and the General Assembly have repeatedly referred to and which is used as an argumentative tool by civil society actors, including many non-governmental organisations. You can thus see how a private initiative has transformed into public normative authority.
This multitude of norms, legal regimes, actors and normative processes is reflected in more recent approaches to international law that focus more on pluralistic governance processes than on a unified legal system, and more on informal law-making than on formal sources.