International law
Demonstration of women from Srebrenica outside the International Criminal Tribunal for the former Yugoslavia (ICTY) headquarters in The Hague, Netherlands, where former Serbian General Ratko Mladic is on trial, 2011
Credit: Shutterstock/De jan kranendonk
Summary
Since 1945, international law has undergone significant development, becoming more diverse and complex. Its aim is no longer solely to oversee coexistence between sovereign states (in terms of peace, security, and cooperation); it now intervenes within states to ensure the wellbeing of individuals and peoples (“liberal welfare” state regimes). Protection of human rights has also been strengthened by the expansion of international humanitarian law, international penal justice mechanisms, and traditional justice, as well as by the extension of covered spheres (security, trade, work, health, environment, and so on).
From its beginnings international law has been an instrument of international politics, reflecting the power relationships, ideals and interests of each era, as well as a precarious, vital instrument of peacemaking. Constructed in the 18th century by European and North American states that were undergoing legal and political consolidation, classical international law is founded on a platform of the fundamental rights and duties of sovereign states and subjects of international law, on recognizing the recourse to force by individual states as a means to resolve differences and on justifying the colonization of the rest of the world by European states that saw themselves as civilized.
Serving in turn as a weapon for the powerful and a shield for the weak, international law has developed significantly since 1945, becoming more diverse and more complex: the process has involved a relativization of the foundations of state sovereignty, a proliferation and diversification of sources and actors (private, transnational, multilateral, individual, etc.), geopolitical upheaval connected with the former communist regimes, decolonization, the Cold War (and its consequences) and globalization, and an expansion in the law’s spheres of coverage (security, trade, labor, healthcare, environment, etc.).
Regulation – and intervention
Contemporary international law changed first in prohibiting the use of force (Kellogg-Briand Pact in 1928, UN Charter in 1945) and instituting mechanisms for collective security and peaceful dispute settlement (negotiation, mediation, conciliation, good offices, arbitration, international courts, etc.). Above all, it no longer seeks merely to manage the coexistence of sovereign states (peace, security, cooperation) but also intervenes within states to ensure the well-being of individuals and peoples. This expansion of the law’s purposes resulted in the emergence of “liberal welfare” law, creating tensions between the liberal respect for freedoms and sovereignty and welfare-motivated interventions in society.
While decolonization reaffirmed the principles of sovereign equality between states and non- interference, it also affirmed nations’ right to self-determination. During the 1960s, advocates of the right to development and the new international economic order (NIEO) worked toward the goal of true international justice and not just on paper. The process by which so-called underdeveloped countries would catch up with developed countries was to be founded on principles of freedom of choice of economic system, permanent sovereignty over natural resources, fairness, and common but differentiated responsibilities. Following the neoliberal turn of the 1980s, the right to sustainable development sought to reconcile economic factors (stimulating growth), social factors (fighting inequality) and ecological factors (preserving the environment), while incorporating an intergenerational dimension (action on behalf of future generations). The ending of the Cold War simultaneously encouraged consideration of human rights, criteria for good governance, the rule of law and democracy, giving rise to so-called humanitarian interventions in some armed conflicts and to conditionality in the provision of development aid.
Expansion of human rights
Human rights protection has expanded with the development of international humanitarian law : protecting victims of armed conflict (Geneva Conventions of 1864 and 1949), regulating the choice and use of weapons (Hague Conventions of 1899 and 1907), requiring human rights observance during hostilities, and criminalizing typically international practices such as slavery and trafficking in women and children. After the Second World War, military tribunals were set up to prosecute the defeated parties, and the concepts of war crime, crime against humanity and genocide were defined. Respect for human rights is among the fundamental goals of the UN and is enshrined in the Universal Declaration of Human Rights (1948).
Ratifications of eight human rights agreements, 1966-2017
Comment: These graphs show the historical sequence of ratification relating to eight international conventions on human rights. With the exception of conventions relating to children’s rights and the rights of disabled persons, both of them massively and swiftly ratified, the six other treaties were ratified only very gradually. Even so, these conventions were fairly widely ratified, by an average of over eight states out of ten, except for the convention on the protection of migrant workers’ rights, which was ratified by only a quarter of states.
However, plans to create an international criminal court lost momentum during the Cold War, while international covenants on civil and political rights, and on economic, social and cultural rights were not adopted until 1966.
Nonetheless, legal human rights protection developed at the regional level – European Court of Human Rights (1959), Inter-American Court of Human Rights (1979), African Court on Human and Peoples’ Rights (1998) – and progress was made toward abolishing the death penalty internationally.
Death Penalty and Executions, 2017
Comment: NGOs are the only bodies to publish information about the death penalty (status and executions). In 2017, the death penalty was still legal in many Middle Eastern, Asian, and African countries, as well as in some states of the US. China is thought to hold the greatest number of executions by far, with 2,000 per year. The situations are also critical in Iran, Saudi Arabia, Iraq, and Pakistan. The scale of executions in North Korea and Vietnam is unknown.
The creation of the International Criminal Court (ICC) in 1998 and the adoption by some states of universal jurisdiction (or extraterritorial jurisdiction) arrangements allowing them to judge serious crimes committed abroad or to extradite their perpetrators represented key new advances – though these were challenged by some states.
Today, the drive to extend human rights protections faces the challenge of ubiquitous security-led responses to global or transnational threats (terrorism, criminality, pandemics, environmental risks, economic and financial crises). It also faces demands for the recognition of diverse cultural expressions and identities, hitherto given little consideration in the individualist discourse – claiming universal validity – underpinning the concept of human rights.
- states > State
- The state is a political system that is centralized (unlike the feudal system), differentiated (from civil society, public/private space), institutionalized (institutions are depersonalized), territorialized (a territory whose borders mark the absolute limit of its jurisdiction), that claims sovereignty (holding ultimate power) and that bears responsibility for ensuring its population’s security. In public international law, the state is defined as a population living on a territory defined by borders subject to a political authority (the national territorial state).
- colonization > Colonization
- A historical process by which Europe established deep links with the rest of the world. From the late fifteenth century (the Age of Discovery), a vast movement began for economic, political, and cultural domination of the world, first by Spain and Portugal and then by England, France, and Holland, which from the late sixteenth century started to compete for possession of colonial wealth. A second wave of colonization took place in the nineteenth century, when all the countries of South America that had been under the first two empires were already independent. The Industrial Revolution encouraged the search for new markets, and France and England jockeyed for a share of part of Asia and Africa. The colonized territories had different statuses (dominions, protectorates, or direct rule).
- sovereignty > Sovereignty
- This political idea was formed in the Middle Ages in order to legitimate the independence of emerging states (France, England) from the Pope and Emperor, and taken up by many thinkers (Bodin, Grotius, Schmitt). It refers to a state’s claim to recognize no authority above itself on its own territory and serves more to justify political and legal representations than to describe existing power relations. As a fundamental notion of the international system and the principles of equality between states and non-intervention in internal affairs, it is the opposite of interference. In democratic states, it is attributed to the “sovereign” people, whose votes give legitimacy to institutions and governments. Processes of regional integration involve delegating elements of state sovereignty.
- decolonization > Decolonization
- The empires that resulted from the two great waves of colonization were called into question by colonized countries during the inter-war period. They subsequently collapsed after World War II. The United Kingdom relied on the Commonwealth to make a relatively smooth exit from colonialism, whereas France lost two wars, one in Indochina, the other in Algeria. In 1955, the Bandung conference brought together representatives from twenty-nine countries to mark their support for independence struggles. Spain and Portugal were the last European states to cling to their empires, which nevertheless collapsed in 1975. Although the colonial empires have all disappeared, they have left their mark on territories that are claiming their independence. The last half-century has witnessed the ongoing Israeli colonization of Palestine.
- collective security > Security
- A set of representations and strategies developed by an individual or collectivity to reduce the threats to which they feel exposed. At the international level, security may consist of: 1) an unstable, precarious balance between the security of different nations, underpinned by their degree of power; 2) the concerted organization of this balance (international security); 3) the establishment of a security regime imposed on all states that have signed up to it (collective security). Above and beyond any tangible threat, the language of security tends to represent objects or groups of people as dangers for the security of states, notably in order to justify particular security policies (state of emergency, military action, closing of borders, etc.).
- peaceful dispute settlement > Peaceful Settlement of Disputes
- A set of legal and political mechanisms enabling an international conflict to be resolved without the use of force. The peaceful resolution (or settlement) of disputes can occur through direct bilateral or multilateral negotiation between the protagonists or through the intervention of a third party (state, international organization, international jurisdiction, private, religious or individual actor, etc.) in the form of mediation, good offices, arbitration or judicial investigation. Codified in the early 20th century, these mechanisms were developed under the aegis of the UN, whose Charter established the respective competences of the General Assembly and the Security Council, and the primacy of the second in considering a dispute.
- mediation > Mediation
- Peaceful mode of resolving disputes involving the use of an intermediary, the mediator, to help the conflicting parties find an outcome negotiated through mutual concessions. Mediators are expected to operate impartially and with complete independence. Regulated internationally by the Hague Convention of 1907, mediation was used by the League of Nations (LoN) and has since been deployed, in particular, by the UN. Mediation is also practiced within democratic states in order to resolve minor disputes (i.e. family mediation, judicial mediation, etc.). Cultural mediation is used, for instance, in providing support to migrants.
- individuals > Individual
- The individual, as a basic social actor, is playing an increasingly important role in the processes of globalization for multiple reasons, including the ever-faster circulation of ideas, values and information; the ability to build networks for sharing and solidarity without physical proximity; the networking of international expertise; and human rights movements and demands for democracy.
- development > Development
- Definitions of development and its opposite – underdevelopment – have varied considerably according to the political objectives and ideological positions of those using these words. In the 1970s, Walt Whitman Rostow conceived of it as an almost mechanical process involving successive stages of economic growth and social improvement, whereas Samir Amin analyzed the relationships between center and peripheries, seeing the development of the former as founded on the exploitation of the latter. In Latin America, the dependency theory condemned the ethnocentrism of the universal view that the “periphery” of underdeveloped states could simply catch up through modernization. Talking of poor or developing “countries” masks the inequalities that also exist within societies (in both Northern and Southern hemispheres) and individuals’ connections to globalization processes.
- new international economic order > New International Economic Order
- Concept proposed by Third World countries during the 1960s and 1970s, calling for a rebalancing of the highly asymmetrical economic and trading relations between developed countries and the developing world. The principles proposed included the right of every state to control its resources (e.g. via nationalizations), the principle of fair and stable prices for exporters of raw materials, guaranteed outlets and preferential treatment for developing countries, supervision of the activities of multinational corporations, and compensation for damages suffered under colonial rule. The NIEO also spawned a variant focusing on information issues, with the call for a New World Information and Communication Order (NWICO). These demands met with resistance from most developed countries and then collided with the neoliberal turn of the 1980s, before re-emerging within anti-globalization movements from the 1990s onward.
- underdeveloped countries > Developed Country
- At point 4 of his Inaugural Address of 1949, American President Harry S. Truman outlined a program of aid for “underdeveloped areas. This phrase refers to all the countries regarded as “lagging behind” in progress toward what thus becomes the model set by the developed, industrialized countries, which at that time had stronger growth and higher standards of living. The evolution of the terminology from underdeveloped to developing and developed countries has not altered the linear, evolutionist aspect of the overall vision. Nor has it in any way nuanced the homogenization and reification of the groups so described.
- developed countries > Developed Country
- At point 4 of his Inaugural Address of 1949, American President Harry S. Truman outlined a program of aid for “underdeveloped areas. This phrase refers to all the countries regarded as “lagging behind” in progress toward what thus becomes the model set by the developed, industrialized countries, which at that time had stronger growth and higher standards of living. The evolution of the terminology from underdeveloped to developing and developed countries has not altered the linear, evolutionist aspect of the overall vision. Nor has it in any way nuanced the homogenization and reification of the groups so described.
- neoliberal > Neoliberal
- The term “neoliberal” is one deployed by critics and not a label attached to any self-proclaimed school of economics. It generally refers to economic policies inspired by the Chicago School (Milton Friedman, awarded the Nobel Prize in Economics in 1976), partially applied by Margaret Thatcher in the UK and Ronald Reagan in the USA during the 1980s, and subsequently recommended by economic and financial institutions such as the World Bank and the IMF. These policies translate into state-implemented privatization and market deregulation measures and differ from classical liberalism in the importance accorded to economic efficiency relative to political freedoms.
- sustainable development > Sustainable development
- Sustainable development is a form of development which fulfils present needs without compromising the ability of future generations to satisfy their own needs. The concept is defined in the UN Brundtland Report, Our Common Future, which recognizes the compatibility between a market economy and environmental protection; as such, it has been criticized in some quarters. Based on three foundations (economic, social, and environmental), sustainable development seeks simultaneously to attain economic growth, greater social equity in order to limit global inequality, and respect for the ecological balance.
- growth > Growth
- A long-term, sustained increase in a country’s production of economic wealth, in other words, its GDP. Economic growth is not synonymous with development. Measuring it with purely economic and monetary tools is becoming increasingly unsatisfactory because of the deterritorialization and internationalization of economic activities, as well as the failure to take account of any wealth creation that cannot be monetized (elimination of illiteracy, gains in scientific or cultural knowledge, etc.). This implies special emphasis on high productivity despite the potential destruction (especially ecological) caused by growth that is seen exclusively from the angle of economics and financial profitability.
- environment > Environment
- In broad terms, the environment is understood as the biosphere in which living species cohabit, while ecology studies the relations between these organisms and their environment. The environment encompasses very diverse natural areas from undisturbed virgin forests to artificialized environments planned and exploited by humans. In a more limited definition of the term, “environmental” issues are those relating to natural resources (their management, use and degradation) and biological biodiversity (fauna and flora). As a cross-cutting public concern, the environment encompasses issues of societal organization (production models, transport, infrastructure, etc.) and their impacts on the health of humans and ecosystems.
- governance > Governance
- Inspired by management and entrepreneurship, the expression global governance refers to the formal and informal institutions, mechanisms and processes through which international relations between states, citizens, markets and international and non-governmental organizations are established and structured. The global governance system aims to articulate collective interests, to establish rights and duties, to arbitrate disputes and to determine the appropriate regulatory mechanisms for the issues and actors in question. Governance takes various forms: global multilateral governance, club-based governance (restricted to members, e.g. G7/8/20), polycentric governance (juxtaposition of regulatory and management mechanisms operating at various levels), and so on.
- democracy > Democracy
- A political system based on sovereignty of the people, in which the right to govern depends on acceptance by the people. Inspired by the model set up in Ancient Greece and the individual liberties promoted by liberalism, democracy today is mainly representative and based on the principle of citizens’ equality (elections by universal suffrage). It cannot be dissociated from respect for fundamental human rights, which include freedom of speech, freedom of association, freedom of information, and so on. While it has gradually become universalized and is tending to become the norm, it does not refer to a single model since it always depends on the social and cultural context in which it is implemented, which varies from one place to another and according to time period.
- development aid > Official development assistance
- Gifts and loans granted by developed countries (bilateral aid) and international institutions (multilateral aid) to developing and less developed countries: food aid, technical assistance, military assistance, debt relief, and so on. Bilateral aid (2/3 of world aid) leads to dependency (obligation to buy goods and services from the donor’s companies). Introduced during the Cold War era and the time of decolonization, it was used by the United States and the USSR to create or maintain links with their respective blocs, as well as between former metropoles and their former empires. The target of spending 0.7% of developed countries’ GDP for ODA, which was set by the UN in 1970, has only rarely been reached. The European Union is the primary world provider of aid. Multilateral aid is conditional upon respecting economic and political “good governance” criteria.
- Human rights
- These are the fundamentally inalienable and universal rights and duties of human beings, which are indefeasible and universal. In the seventeenth and eighteenth centuries, these were limited to “natural rights” (basic freedoms considered to be allied to human nature) but human rights have now been expanded to include civil, political, economic, social, cultural, and environmental rights on the basis of human freedom and dignity. Human rights have been enshrined in the constitutions of most democratic regimes. They are also subject to many protective provisions at both regional and international levels.
- international humanitarian law > International humanitarian law
- This seeks to mitigate the suffering of victims of armed conflict and to protect civilian populations, imposing obligations on states toward one another and toward their populations. It is also called the “law of war” or the “law of armed conflict” and has evolved along with the changes in these. Codified by the International Committee of the Red Cross (created in 1863) and the first convention in 1864, it is based on the principles of neutrality, the prohibition of certain inhumane weapons, and immunity for non-combatants. The 1949 Geneva Conventions (protecting the sick and wounded in the armed forces, prisoners of war and civilians in times of war) were completed by Additional Protocols in 1977 and 2005. The International Criminal Court (ICC) judges war crimes, genocide and crimes against humanity.
- conflict > War
- Violent confrontation between armed groups over values, status, power or scarce resources, in which the aim of each party is to neutralize, weaken or eliminate their adversaries. This organized, collective, armed violence can be undertaken by states (via their national armies) or by non-state groups; it can bring several states into opposition (interstate war) or occur within a single state (civil war). The former, progressively codified within a legal framework, have become rare, while the latter, today primarily caused by state institutional failure, are tending to become more international in scope, to last over time (sometimes decades) and to be extremely devastating, especially for civilian populations.
- slavery > Slavery
- From the start of the 17th century through to the end of the 19th century, slavery formed the basis of economic growth and societal organization throughout the New World (in the southern states of the US, the Caribbean, Brazil, etc.). African domestic and agricultural laborers, imported and traded as a commodity, drove the development of sugar, tobacco and cotton plantations and the mining of precious metals. Today, the International Labor Organization (ILO) defines modern slavery as covering all victims of forced labor in both public and private spheres (domestic labor, construction, agriculture), of sexual exploitation and of forced marriage.
- crime against humanity > Crime against humanity
- A crime that is considered imprescriptible, and targeting acts such as murder, extermination, deportation, enslavement, persecution for political, religious or racist ends, and any other human act committed against civilian populations before or during an armed conflict. The concept of a crime against humanity originated in the late nineteenth century, during deliberations intended to establish humanitarian international law. It was first used for the Armenian genocide perpetrated by Turkey in 1915, before being legally ratified by the Nuremberg International Military Tribunal in 1945, set up to judge the atrocities committed during the Nazi regime. The definition of a crime against humanity has since been constantly extended by various international declarations, including the Rome Statute establishing the International Criminal Court in 1998.
- genocide > Genocide
- Crime codified by the international Genocide Convention of December 9, 1948. Its definition specifies acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.”
- Cold War
- Period of ideological, geopolitical, economic and cultural confrontation between the United States and the USSR from the late 1940s through the end of the 1980s. Vigorous debate is still ongoing among historians regarding the precise dates of its beginning (the 1917 Russian Revolution? 1944? 1947?) and end (the fall of the Berlin Wall in 1989 or the collapse of the USSR in 1991?). These two superpowers formed two blocs of varying degrees of cohesion around them. This bipolarization of the world to some extent masked other political, economic and social dynamics.
- cultural > Culture
- Culture is what distinguishes human existence from the natural state, that is to say it denotes the processes through which humans use and develop their intellectual capacities. According to Clifford Geertz (1973), culture is a system of significations commonly shared by the members of a social community, who use them in their interactions. Cultures are therefore not immutable but change according to social practices, incorporating processes of both inclusion and exclusion. Culturalism is a concept which considers that supposed collective beliefs and membership of a particular culture predetermine social behavior.
- International Criminal Court > International Criminal Court (ICC)
- The Rome Statute, adopted on July 17, 1998, was the treaty establishing the ICC. The Court has the power to judge war crimes, crimes against humanity, genocide and, since 2010, aggression committed after the Statute entered into force on July 1, 2002. Crimes can be referred by the Security Council, the public prosecutor, or a state party, and the court function according to the principle of complementarity (i.e. it does not replace national legal systems and only intervenes in cases where the latter are unable or unwilling to act). The ICC has been bypassed (particularly by the United States), criticized (for its inefficiency, or because of the high number of African cases), and has received notifications of withdrawal. By spring 2018, only Burundi had left (withdrawal of the Philippines comes into effect in March 2019).
- risks > Risk
- Risk refers to the perception and recognition of dangers and threats to individuals and to the environment. Having first appeared in academic and political thinking in the late 19th century, with the emergence of a welfare state whose role was to protect against the new social risks, the notion of risk developed in recent decades in the light of the globalization of trade and scientific and technological innovation. In his book Risk Society (1992), German sociologist Ulrich Beck analyzes the transition from “modern” societies built on the dogma of economic growth and technological progress to “post-modern” societies based on the production, management and regulation of risk. This is reflected in the rise of the precautionary principle, which seeks to anticipate the possible or probable consequences of natural and industrial disasters, epidemics or technological innovation, in order to protect the affected populations.
- recognition > Recognition
- The validation by an individual, group or institution of a practice, situation or identity that has been claimed. Intrinsically relational and a factor in socialization, recognition can be formal or informal, reciprocal or unilateral. Theories of recognition have an important place in philosophy (Hegel in particular) and have been more recently developed in the social sciences around the “struggle for recognition” (Axel Honneth) and the denial of recognition. International recognition is a discretionary act through which a subject in international law (usually a state or international organization) grants legal status to a situation or an act (a government’s accession to power by non-constitutional means, unilateral declaration of independence, military intervention, etc.).
- identities > Identity
- The concept of identity is ambiguous, multifaceted, subjective, and frequently exploited and manipulated. No identity is foreordained or natural – so it is better to talk of identity construction, or of the processes of constructing self-representations developed by an individual or group. These constructions are neither stable nor permanent, defining the individual or group from multiple perspectives: on its own terms, in relation or opposition to others, and by others. The way individuals and groups use identity varies according to their interests and the constraints inherent in their specific situation: identity, therefore, is a construct based on interaction. This combination of affiliations, allegiances and internal and external recognition is a complex process, involving various degrees of awareness and contradiction, constantly being amalgamated and reconfigured.