Is international law really a law?

Rule beyond the nation state

Tanja Abendschein-Angerstein

Tanja Abendschein-Angerstein

Tanja Abendschein-Angerstein is a doctoral candidate at the Berlin Graduate School for Transnational Studies (BTS) and the Berlin Science Center for Social Research (WZB). Her research interests include international law, international organizations, democracy beyond the state and transnational actors. With Dr. Christian Rauh coordinated the creation of the staples.
Contact: [email protected]

International law traditionally serves as a political element of order in international relations. In the course of advancing globalization, due to an increasing need for coordination, not only was a process of international legalization initiated, but international law itself was also faced with new challenges.

After the experiences of two world wars, 50 states signed the UN Charter in San Francisco in June 1945, a legally binding treaty - the UN was born. (& copy picture-alliance / dpa)
Law is omnipresent in our everyday life, various areas of our social coexistence are regulated by law. This is illustrated by the example of road traffic: clear and identical rules for everyone who takes part in road traffic are intended to guarantee a conflict-free coexistence. It is checked whether these rules are adhered to; if the rule is broken, he will be punished. At the international level, too, we observe forms of rule of law that regulate cooperation between actors. Globalization processes have significantly increased the need for international regulation, and legalization was a political response to these new challenges.

As a result, the legalization of international relations has gained in importance with the advance of globalization since the end of the Second World War. While international law in the areas of security and territorial sovereignty was the focus until the middle of the last century, it has increasingly spread to other areas such as economy, environment and social affairs. Today, international law ranges from the use of the ocean floor to liability for space junk, from arms restrictions to trade tariffs and quotas for greenhouse gas emissions. International law not only affects intergovernmental cooperation, but also increasingly has direct influence on non-state actors. It extends into the domestic legal area, as many policy areas that were previously subject to national regulation are now at least partially regulated by international law.

The prohibition of violence in international law (& copy Bergmoser + Höller Verlag AG, figure 615490)

Features and effects

In general terms, international juridification describes a process in which international cooperation is increasingly subject to the rule of law. Although no uniform international legal order has emerged within the framework of a world state so far, there are approaches to the rule of law.

Commitment

In contrast to other social norms such as moral commandments, manners or customs, law is binding and enforceable. Legal binding force can only be created by certain legislative bodies. This authority is taken over internationally by the responsible states. In principle, states have formally equal voting weight in votes on treaty texts. Countries like China and India with more than a billion people have just as much a voice as Liechtenstein or Nauru with fewer than 40,000 inhabitants. Behind this is the principle of equality of rights. Just as within constitutional states, citizens are equal before the law and in court, states also recognize each other as formally equal and sovereign legal partners in international law. Formally, this eliminates different positions of power, militarily or economically, and thus the right of the stronger is overcome.

Most important nowadays is contract law, as the majority of legal norms are set out in writing. Over 55,000 international contracts were concluded between 1945 and 2000. International organizations usually serve as an institutional framework to support the fulfillment of the treaties. They also offer a platform to promote cooperation in the respective area in new negotiation rounds. The number of intergovernmental organizations has risen from just under 40 since the beginning of the 20th century to almost 7,700 in 2012. The oldest international organizations include the Central Commission for Navigation on the Rhine (1815), based in Strasbourg, the International Telecommunication Union (1865), based in Geneva, and the Universal Postal Union (1874) in Bern, Switzerland. However, not all resolutions of states are legally binding, some are merely recommendations or declarations of intent.

Source text

The UN Convention against Torture

The "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" (UN Convention against Torture), adopted by the UN General Assembly on December 10, 1984, is the most important legally binding treaty against torture. The main achievement of the convention is that it identifies concrete steps and measures that the contracting states must take in order to put the absolute prohibition of torture into practice.

The Convention was initiated, among other things, by Amnesty International's second global campaign against torture, which called for its own UN protection system. Today the convention, which came into force in 1987, counts 156 contracting states worldwide [...]. The central point of departure of the convention is the absolute prohibition of torture. The prohibition of torture was already included in the Universal Declaration of Human Rights of 1948 and in the UN Civil Pact of 1966. The Convention against Torture adds a precise definition of torture. It also forbids states not only to torture themselves, but also to extradite people to countries where they are threatened with torture or ill-treatment (Art. 3, non-refoulement). States are also not allowed to benefit from proven evidence and this e.g. B. use in court (Art. 15, prohibition of using evidence).

All states must take precautions in their legal systems to prevent torture, e.g. B. through appropriate training of the law enforcement authorities and all civil servants involved. Torture must be appropriately punished, allegations must be promptly, independently and effectively investigated, and the perpetrators punished. Survivors of torture and ill-treatment must be adequately compensated.

All contracting states must report regularly on their progress in implementing the Convention against Torture. The responsible monitoring body is the UN Committee against Torture, based in Geneva, which was also set up by the Convention. Every four years, the contracting states prepare a state report which they then discuss with the committee. The Committee has been issuing concluding remarks and recommendations for the contracting states since 1998. This obligation of states to declare should not be underestimated: Although many states do not adequately combat torture or even use it actively, they want to avoid being branded in the public reports of the UN committee. [...]

Amnesty International, Section Federal Republic of Germany V., press release, Berlin 2014;http://www.amnesty.de «

Unfold

Close

In addition, (inter) national courts can use their interpretation to close legal loopholes in international law. Furthermore, customary international law remains as the oldest source of international law. The prerequisites for this are fulfilled if a decisive majority of states follow a certain behavior (state practice) in the conviction that this is legally binding (opinionio juris). In contrast to contract law, customary law applies not only to explicit consent, but generally to the entire international community. Customary international law is particularly important today in areas that are not (yet) regulated by treaties or when the relevant treaties have not been universally ratified. Examples are state sovereignty and human rights.

Procedure and Courts

But juridification involves more than a purely numerical increase in international laws, i.e. regulation. In addition, there are procedural rules that stipulate the making, enforcement and interpretation of law in compliance with important constitutional principles. For example, in the case of international legislation, it is regulated in advance which majorities are required for certain decisions. In addition, the mechanisms are determined with which compliance with the rules is to be checked.

International courts (& copy Bergmoser + Höller Verlag AG, figure 615520)
The most obvious sign of international juridification, however, is a growing number of international courts and / or court-like dispute resolution bodies. As a cornerstone of the rule of law, ideally an independent judiciary ensures fair and impartial conflict regulation with legally binding judgments. Judicial decisions are becoming more and more important precisely because globalization is increasing the complexity of the rules. While there were six permanent international courts in the mid-1980s, there are at least 24 today, supported by more than 100 ad hoc courts or court-like units. The International Court of Justice (ICJ) is one of the most important. It was established in 1945 as one of the six main permanent bodies of the UN and began its work in April 1946. Due to its all-encompassing area of ​​responsibility (universal jurisdiction), it can handle all interstate disputes over existing international law. The prerequisite for this is that the parties involved in a legal dispute have submitted to the jurisdiction of the Court of Justice.

Source text

Necessities and obstacles of supranational criminal jurisdiction

The lawyer Fatou Bensouda from Gambia has been chief prosecutor at the International Criminal Court (ICC) since June 15, 2012 [s. a. P. 54 f.]. The practicing Muslim was her country's Justice Minister from 1998 to 2000.

SZ: Ms. Bensouda, the Syrian dictator Bashar al-Assad has been breaking pretty much every rule of the Geneva Conventions for the last four years. His opponents from the Islamic State militia do the same, with the difference that they even brag about it. Why do we hear so little about this [...] from the international judiciary?
Fatou Bensouda: Make no mistake. It is true that we are not doing anything against the Syrian regime because we cannot do anything. Syria has not signed the statute of the International Criminal Court. But in the case of IS, we are currently looking for a way.

SZ: How does he look like?
Bensouda: There is extensive evidence that foreigners fight in the ranks of IS, from countries that have signed the Statute of the Court of Justice: Jordan, Tunisia, also European states. We could prosecute these suspects for war crimes and crimes against humanity. [...]

SZ: How do you want to investigate in the area dominated by IS? Just last week you reported to the UN Security Council that your investigations in another civil war country, Libya, had become almost impossible.
Bensouda: Unfortunately, this is our daily work. We almost always investigate in areas where wars are still raging. It is extremely difficult to protect our staff, but more importantly: to find witnesses who have the courage and whom we can protect. Sometimes we try to fly out witnesses. Sometimes we take them to shelters, or we use creative ways that shouldn't be in the newspaper. We are also increasingly trying to work with documents rather than witnesses. [...]

SZ: Do you work [...] with intelligence from intelligence services?
Bensouda: With the material from our Member States, yes. But also with reports from non-governmental organizations. Of course, if we should decide to investigate, we will investigate independently. [...]

SZ: Do you deter fanatics and dictators with punishments at all? In Libya you indicted the leaders of the tumbling Gaddafi regime three years ago, but today Gaddafi's crimes are being obscured by new atrocities every day.
Bensouda: How long have there been courts in Germany? Hundreds of years, thousands? Still, there is murder and rape. So should the judiciary despair? Of course not, that would be absurd. And now think of the men we have to deal with in our war crimes trials: they have never known any judiciary about themselves. The ICC has only been investigating for eleven years; we are initiating a change that will be very, very slow. In Kenya, for example, we indicted the politicians who instigated week-long riots against civilians in the last election. And this time? Did the election go much more peacefully? I am not saying that there is a clear causality, but I do think that the ICC already plays a role. [...] Things are moving.

"World justice threatens IS fighters", Ronen Steinke spoke to the chief prosecutor of the International Criminal Court in: Süddeutsche Zeitung from November 20, 2014

Unfold

Close


By the end of 2011, international courts had issued more than 37,000 legally binding judgments, 91 percent of them since the end of the Cold War. The most active of these are by far the European Court of Justice (ECJ, 18,511 judgments) and the European Court of Human Rights (ECHR, 14,940 judgments), which together pronounced almost 90 percent of the judgments. They are followed by the courts of the Andean Community (ATJ, 2197 judgments) and the Organization for the Harmonization of Business Law in Africa (ODAHA, 569 judgments), which are less well known in this country. "Small" versus "large" states can also be successful in dispute settlement procedures. This happened, for example, in the case of the island state of Antigua and Barbuda against the USA for online gambling in the World Trade Organization (WTO).

Last but not least, law enforcement requires a penalty if rules are not followed. The corresponding sanctions should not only be set by an independent body, but also enforced by a central body. Due to the lack of a world police force, this is one of the main weaknesses that hinder the emergence of an international legal order.

Overall, international juridification is not to be understood as a continuous and unstoppable process, but has different degrees of development in individual policy areas. For example, international trade and, to a lesser extent, the environmental sector are much more internationally legalized than the fields of security and finance.

Functions and effects

Due to the characteristics described, a legal system fulfills important functions for social coexistence. The aim is to create reliability and expectation certainty through pre-determined procedures and thus to guarantee peaceful conflict management. Actors can orient themselves to rules and also expect others to adhere to the rules. The development of a legal system should lead to legal security and thus to stability in international governance.