Question

Is the act of "shaming" another country-a key ingredient in the workings of international law-more effective in today's globalized world than in the past? Compare and contrast a national legal system with international law and differences of enforcement power help to explain international law's problems with effectiveness.

Answer 1

The definition of international law centers on the word “inter,” which means “between,” as opposed to “intra,” which means “within.” So, literally, “international law” is defined as “law between nations (States),” which stem from agreements, embodied in a treaty, or customs that is recognized by all nations. According to Article 38 of the Statute of the International Court of Justice, sources of international law, in order of precedence, are: (a) international conventions (treaties); (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d) judicial decision and the teachings of the most highly qualified publicists of the various nations.

National law, which is often referred to as domestic law, are those laws that exist “within” a particular nation (State). National laws are also recognized as the expression of the State itself, since it emanates from the local authority, which could be the law making institution, such as the United States Congress or the French Parliament. In some States, called States with a common law tradition, laws could also come from decisions made by judges, which is also called case law. Other States, called States with a civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.

Apart from the sources of international law, including treaties in particular, national constitutions also contain provisions of direct or indirect relevance to international law. The following are noteworthy examples of such provisions:

Protection of human rights Nearly all States give constitutional recognition to the protection of human rights and fundamental freedoms, and this protection is frequently confirmed by legislation and case law. In addition, numerous States are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the two United Nations Covenants concerning economic, social and cultural rights on the one hand, and civil and political rights on the other (1966), and other international instruments relating to human rights. It is worthy of note that the international instruments mentioned above have in varying degrees influenced certain constitutional texts recently adopted, inter alia by the new European democracies. Moreover, it should be emphasised that some constitutions are found to contain provisions requiring accession to the international human rights conventions (San Marino) or prescribing a method of interpretation in conformity with the 1948 Universal Declaration of Human Rights (Portugal), or again recognising the superiority of human rights conventions over national laws (Russia).

Protection of aliens and stateless persons Several constitutions contain general provisions for the benefit of aliens and stateless persons (Italy, Portugal, United States, Russia, Hungary, Romania, Albania, Luxembourg). In other States, aliens enjoy a number of rights and freedoms which are guaranteed by the Constitution (Germany, Sweden, Denmark, Greece). Finally, special provisions in some constitutions expressly recognise the right of asylum (France, Italy, Portugal, Russia, San Marino, Bulgaria, Croatia) and in some cases the principle of non-repatriation (Switzerland, Bulgaria).

Protection of national minorities Members of minority groups enjoy the same rights and are subject to the same obligations as all other citizens. In addition, however, a number of constitutions contain general provisions for their protection (Denmark, Portugal, Romania, Czechoslovakia, Albania, Croatia, Lithuania), and more especially for the protection of linguistic minorities (Italy, Switzerland, Russia, Bulgaria). The Hungarian Constitution contains detailed provisions for the protection of minorities. Other constitutions provide direct protection for specific minorities (Finland, Norway, Slovenia). It should be noted that the constitutions of the new democracies of Central and Eastern Europe are the ones most likely to contain provisions concerning minorities, this being an issue which acquired major topical importance after the recent events which radically changed the face of Europe and the world.

Provisions prohibiting the use of force Not only war but any recourse to the threat or use of force in international relations are outlawed (Article 2 para. 4 of the United Nations Charter). Some constitutional texts, particularly the most recent ones, repeat this preemptory rule word for word (Hungary, Slovenia, Czechoslovakia), while others, following the same general line, expressly prohibit aggression or explicitly provide that force will only be used for defence (Portugal, Denmark, Norway, Turkey, Albania). It goes without saying, however, that even long-established constitutions which contain general provisions on the declaration of war have to be interpreted, on the basis of international law, as authorising recourse to war only for defensive purposes. Depending on the country concerned, the authority to use force may be vested in the Head of State without restriction, in the Head of State subject to parliamentary authorisation or in the Parliament. Lastly, some constitutional texts expressly rule out war as a means of settling disputes (Italy, Hungary, San Marino), while the German Constitution provides that the Federation shall accede to agreements concerning arbitration of a general and compulsory nature.