National Institute of

Business Management
Master of Business
Administration (MBA)

International Law
 CONTENTS

Chapter Title Page No.

I THE ORIGIN OF THE INTERNATIONAL 5

LEGAL ORDER AND ITS NATURE

II THE SOURCES OF INTERNATIONAL LAW 19

III INTERNATIONAL ORGANISATIONS 36

IV INDIVIDUALS AND PRIVATE CORPORATIONS 42

V TREATIES 52

VI INTERNATIONAL HUMAN RIGHTS LAW 61

VII INSTITUTIONS OF INTERNATIONAL CRIMINAL LAW 99

 CHAPTER - I
THE ORIGIN OF THE INTERNATIONAL
LEGAL ORDER AND ITS NATURE

O BJECTIVE
WTO is an international organization that brings together two concepts of international law.
Leaving aside one or two specificities, it is a permanent negotiating forum between sovereign states and
is therefore a cooperation organization akin to the international conferences under traditional interna-
tional law. But it also comprises a sophisticated dispute settlement mechanism which makes it an inte-
gration organization, rooted in contemporary international law. In simple terms, the WTO’s sophisti-
cated dispute settlement mechanism makes it a distinctive organization.
Above all, the WTO comprises a true legal order. If we go by professor Jean Salmon’s defini-
tion, “a body of rules of law constituting a system and governing a particular society or grouping”, we
see that there exists, within the international legal order, a specific WTO legal order. The WTO system
has two essential attributes: valid rules, and enforcement mechanisms. But the fact that it is specific does
not mean that it is insularized or isolated. These are firstly how this legal system fits into the international
legal order, and secondly, how it links in with the other legal systems.
ORIGIN OF INTERNATIONAL LAW
Trade is at the origin of entire segments of public international law, and accounts for one of its
main sources: the treaty. Indeed, one of the first international legal instruments to leave its trace in
history was the commercial treaty between Amenophis IV and the king of Alasia (Cyprus) during the
XIV century BC. This treaty exempts Cypriot traders from customs duty in exchange for the importa-
tion of a certain quantity of copper and wood. Nothing has fundamentally changed since: at the begin-
ning of the XXI century AD we still have bilateral trade agreements. But they now have to be notified to
the WTO where they are checked for consistency with international trade rules.
The international legal order, on the other hand, has evolved dramatically. The great empires
have disappeared into history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the
notion of sovereignty, the treaties of Westphalia ushered in the pre-eminence of a society of sovereign
States, the Congress of Vienna of 1815 laid the foundations of multilateralism, and the XIX century
invented the first international organizations. With the creation of the League of Nations followed by the
United Nations system, and finally, with the disintegration of the Eastern Bloc, the XX century saw the
evolution of traditional international law between States towards a contemporary and universal interna-
tional law open to new players such as the international organizations and the non-governmental orga-
nizations.
Thus, the international legal order has gone through a number of upheavals. But its evolution
has been neither linear nor homogenous - which is why international society still bears the marks of
several historical stages of the process.

5
A UNIQUE LEGAL SYSTEM WITHIN THE INTERNATIONAL LEGAL ORDER
The WTO is an international organization. This may seem obvious, and yet it took over 50
years to achieve that result. This protracted effort to acquire a legal existence has left its marks.
The GATT, which was replaced by the WTO in 1994, was a provisional agreement that en-
tered into force in January 1948 and was to disappear with the treaty creating the International Trade
Organization. Since that treaty never entered into force, the GATT remained, for a half a century, an
agreement in simplified form which, in principle, did not provide for any institutional continuity. Thus, the
GATT did not have “Members” but “contracting parties”, a term which highlighted the purely contrac-
tual nature of the arrangement. Without any international organization in the strict sense of the term, and
therefore without a separate international legal personality, the GATT could only operate through its
CONTRACTING PARTIES and, for its every day work, with the support of the Interim Commission
for the International Trade Organization (ICITO), a provisional commission responsible for setting up
the ITO.
Thus, it was almost 50 years later, with the Marrakesh Agreement, that a true international
organization was finally created, i.e., according to the definition supplied by the International Law
Commission in its draft articles on the responsibility of international organizations, “an organization
established by a treaty or other instrument governed by international law and possessing its own inter-
national legal personality”. In order to avoid any ambiguity, the Agreement Establishing the WTO states
in Article VIII that the Organization shall have legal personality.
The implications of this status are numerous. The Marrakesh Agreement states that Members
shall accord the WTO such privileges and immunities as are necessary for the exercise of its functions.
Thus, its legal personality consists of an international facet, which enables it to act at the international
level, and an internal personality, which enables it to conclude contracts for the purposes of its day-to-
day operations and among other things to employ its six hundred permanent staff members. As with all
international organizations, the competencies of the WTO are limited by the principle of speciality. But
alongside its subject-matter competence, which is explicitly provided for in its constituent instrument,
the WTO also has implicit competencies. Thus, the main consequence of this status of international
organization is that it enables the WTO to have its own will which is expressed in a legislative output
within the limits fixed by its constituent instrument, and to interact with other international players.
As a true international organization, the WTO now comprises an integrated and distinctive legal
order: (1)it produces a body of legal rules (2) making up a system and (3)governing a community .
(1) A body of legal rules, first of all. The WTO is a treaty comprising some 500 pages of text accom-
panied by more than 2,000 pages of schedules of commitments. Moreover, 50 years worth of
GATT practice and decisions — what we call the “GATT acquis” — have been incorporated in
what constitutes the new WTO treaty. WTO rules are regularly renegotiated. While it is true that
the WTO Secretariat and the WTO bodies do not have any general power to adopt formally

6
 binding rules, the WTO bodies are able to adopt effective decisions that provide pragmatic re-
sponses to specific needs, and in that sense, they do produce a kind of secondary legislation. The
system is no longer based solely on the principles of a certain diplomacy which often led, under
the GATT, to the adoption of negotiated solutions that reflected the relative power of the States
involved. The WTO does not produce equity, in the meaning given to the term by public interna-
tional law — rather, it produces legality.
(2) Secondly, these legal rules form an integrated system. Indeed, the WTO agreements are inte-
grated in a “single undertaking” which forms an entity that is meant to be coherent. A number of
provisions recall this fact, and in particular Article II:2, which states that the multilateral trade
agreements “are integral parts” of the Agreement Establishing the WTO and are “binding on all
Members”. This is why they appear in annex to the Agreement Establishing the WTO. In the
Indonesia — Autos dispute, the panel which ruled in the first instance recalled that there was a
presumption against conflict between the different provisions of the WTO treaty since they formed
part of agreements having different scopes of application or whose application took place in
different circumstances. On several occasions, the Dispute Settlement Body (DSB) reaffirmed
that Members must comply with all of the WTO provisions, which must be interpreted harmoni-
ously and applied cumulatively and simultaneously. Thus, the WTO treaty is in fact a “single
agreement” which has established an “organized legal order”.
(3) Thirdly, WTO law governs a community, namely its Members. In United States — Section 301,
the Panel confirmed the existence of a GATT/WTO legal order and even seemed to suggest that
this order was characterized by its “indirect impact on individuals”. For, by contrast, “when an
actual violation takes place ... in a treaty the benefits of which depend in part on the activity of
individual operators the legislation itself may be construed as a breach, since the mere existence
of legislation could have an appreciable ‘chilling effect’ on the economic activities of individuals.”
The qualification of nations no longer only as objects of WTO law, but also as subjects, is still
disputed. Leaving that debate aside, I would say that the WTO rules above all effectively govern
the community of its Members, since failure to comply is punishable in the framework of the DSB.
In other words, they do form a new legal order as defined above.
However, this integrated legal system is not “clinically isolated”: there is a presumption of valid-
ity in international law and the rules of its treaties must therefore be read in harmony with the principles
of international law. Thus, the WTO legal order respects, inter alia, the sovereign equality of States,
good faith, international cooperation, and the obligation to settle disputes peacefully, not to mention the
rules of interpretation of conventions which the Appellate Body, for example, applies without hesitation.
The WTO respects general international law, while at the same time adapting it to the realities of
international trade. In joining the international legal order, the WTO has ended up producing its own
unique system of law.
Leaving aside the doctrinal debate on the autonomy of international economic law, it is clear
that WTO law is largely a circumstantial application of international law in general.

7
PRINCIPLES OF GENERAL INTERNATIONAL LAW
The sovereign equality of States and the obligation to settle disputes peacefully.

The sovereign equality of States requires formal equality between States of different sizes and
power. This principle is fully respected at the WTO.

While most international economic organizations have a restricted body alongside their plenary
body, the WTO is unusual in that the totality of its Members participate, as a matter of law, in all of its
bodies from the Ministerial Conference, which meets at least once every two years, to the General
Council, which functions during the interval, not to mention each of the councils and committees. All of
the decisions are taken according to the principle “one government/one vote” and by consensus. While
it is true that this rule of consensus is responsible for certain sluggishness in the negotiations, it does
enable all States, whatever their share in international trade, to express their views and to participate on
an equal footing.

The principle of equality is also reflected concretely in the substantial rules of the WTO. For
example, in the form of the principle of non discrimination it can be found in the most favoured nation
clause and the national treatment rule. It also underlies the principle of reciprocity, which is at the heart
of the negotiating mechanism. Indeed, as recalled by the UN Secretary-General before the General
Assembly in 2004, equality is a fundamental requirement:

“At the international level, all States — strong and weak, big and small — need a framework of
fair rules, which each can be confident that others will obey. Fortunately, such a framework exists.
From trade to terrorism, from the law of the sea to weapons of mass destruction, States have created
an impressive body of norms and laws.”

But as Kofi Annan points out, these rules must also be fair — which is why the WTO goes
beyond formal equality and seeks to establish real equality. True equality can only exist between equals.
When it comes to trade, some of the less developed countries require certain flexibilities if trade and
development are to continue to exist side by side. So the developing countries can enjoy non-recipro-
cal benefits, in particular special and differential treatment. This deviation from the GATT principles for
the developing countries was made official in 1964 with the addition to the GATT text of part IV,
“Trade and Development”.

Article XXXVI.8 states that “the developed contracting parties do not expect reciprocity for
commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to trade
of the less developed contracting parties.” And there is also the so-called Enabling Clause, which
provides for the establishment of a “generalized system of preferences” that authorizes the developed
countries to grant tariff advantages to the developing countries as an exception to the most favoured
nation clause. These are positive discrimination mechanisms to ensure effective equality among Mem-
bers. They are in no way inconsistent with the sovereign equality of States — on the contrary, precisely

8
as in the case of domestic laws, where social legislation is an essential corollary to equal dignity of men
and women, this adaptation of applicable rules to the real situation of States is a way of ensuring more
genuine equality. You will probably recognize, here, the very pertinent remarks of my old friend Profes-
sor Alain Pellet.

The WTO, then, rests largely on the principle of sovereign equality of States. But this does not
mean that it is incapable of showing the kind of pragmatism that befits the area of trade in applying the
principles of traditional international law.

With regard to the sovereignty of States, that in principle, only sovereign States are equal. This
is why in principle; the traditional international organizations are made up of States only. It is true that
the WTO remains an inter-State framework. However, once again it has been able to adapt to the
evolution of the international society and the emergence of new actors.

Members may be “customs territories”, so that Chinese Taipei has been able to join the WTO,
and Hong Kong has been able to continue participating as an autonomous Member following its return
to China. Similarly, the participation of the European Community as a WTO Member is unique. In the
1970s, the Commission participated de facto in GATT meetings, substituting for the European Eco-
nomic Community Members to express a common position. With the creation of the WTO, this prac-
tice was formalized. The Organization’s constituent treaty provides that the number of votes of the
European Communities and their member States shall in no case exceed the number of their member
States. What is new here is above all the participation of the Community alongside its member States.

Also worth mentioning in this respect is the growing participation of NGOs — a term which the
WTO interprets in a very broad sense. Article V:2 of the Agreement Establishing the WTO stipulates
that “the General Council may make appropriate arrangements for consultation and cooperation with
non-governmental organizations concerned with matters related to those of the WTO.” There has been
no detailed arrangement to date, but in 1996, the General Council adopted guidelines specifying the
nature and scope of relations between the WTO Secretariat and the NGOs. These new rules have
served as the basis for a policy of greater transparency towards the NGOs. This does not mean,
however, that they are allowed into the actual negotiating forum: the WTO remains an inter-State
negotiating framework. Nor are the NGOs given access to the Dispute Settlement Body, although they
have been allowed a growing role in the proceedings through amicus curiae briefs since the report of the
Appellate Body in United States — Shrimps.

It is in fact necessary to preserve the inter-State framework of the WTO while keeping an ear
open to the non-State actors that represent civil society. This balance aims to ensure that the WTO acts
in the general interest which, in principle, is embodied in the State, while the NGOs defend — quite
legitimately — interests that are often specific. Nevertheless, by recognizing the role of the NGOs the
WTO is contributing to their impact within the international legal order. Thus, the WTO has also acted
as a vehicle in the evolution of international law towards its contemporary form, and indeed a driving
force in the progressive transformation of international society into an international community.

9
 Another example of the WTO respecting general international law while adapting it to the
constraints of its own legal order: the principle of the obligation to settle disputes by peaceful means.

This obligation is a principle that lies at the heart of general international law and is enshrined in
the United Nations Charter. Twenty-five years later, the General Assembly voted the famous Declara-
tion on the seven principles of peaceful coexistence, which recalls that “States shall settle their interna-
tional disputes by peaceful means in such a manner that international peace and security and justice are
not endangered”. Thus, when they created the international organizations, the States ensured that their
chief goal was to maintain peace through appeasement and prevention of international tensions, and
then introduced the dispute settlement systems. In this context, the creation of a multilateral trading
system was a means of ensuring both peace through law and peace through prosperity.

The implementation of the principle of the obligation to settle disputes by peaceful means, with
bodies created to that end, is a way of institutionalizing international responsibility, the main character-
istic of which, in traditional international law, is decentralization. It has now been established that States
are responsible for any negative impact of their wrongful acts; but the determination of their responsibil-
ity and above all, its implementation, remain essential to the effectiveness and efficiency of any legal
system. One of the WTO’s distinctive features is its sophisticated dispute settlement mechanism which,
as I mentioned earlier, tends to make it more of an integration organization, “solid” rather than “liquid”.
Under Article 56 of the text of the International Law Commission on “Responsibility of States for
Internationally Wrongful Acts” which appears in annex to General Assembly Resolution 56/83, the
WTO dispute settlement mechanism is a special system, or lex specialis. Consequently, the DSB can
go beyond general international law on the road to communitizing WTO law — that is, consolidating its
legal system in the wake of an institutionalization of international responsibility.

Although still influenced by its origins, when, in the words of Professor Canal-Forgues, it was
more of a quasi-judicial conciliation mechanism, the WTO dispute settlement system introduced a new
“jurisdiction” which ensures the enforcement of rulings and recommendations. At the same time, the
procedure tends to preserve the fundamental requirements of fair trial. It is a compulsory jurisdiction
that is broadly accessible to Members; it decides according to law; the procedure for adopting deci-
sions is quasi-automatic; rulings are made by independent persons, and their implementation is subject
to continuous multilateral monitoring until full satisfaction of the complainant where a violation has been
found. Moreover, the Appellate Body functions more or less like a court of cassation, which hears only
matters of law. This confirms the essentially legal nature of the system.

Above all, WTO jurisdiction is compulsory for all WTO Members. No Member may oppose
the initiation of a dispute settlement procedure by another Member: in other words, that Member must
submit to WTO law. Contrary to what may happen in other international forums, for example the
International Court of Justice, all WTO Members have, by definition, accepted the compulsory and
exclusive jurisdiction of the Dispute Settlement Body for all matters relating to the WTO agreements.

10
 In order to avoid the fragmentation of the dispute settlement mechanisms that existed under the
GATT regime, the Marrakesh agreements also sought to preserve the unity of the system under the
DSB. Thus, the settlement of all disputes relating to WTO rules has been placed under the auspices of
a single institutional body, the Dispute Settlement Body, and is subject to a single body of rules and
procedures contained in the Understanding. In other words, it is an integrated system.
An important, and in many ways innovative feature of this system is the presumption of legal
and economic interest in bringing proceedings, which confirms the hypothesis of a “communitization” of
WTO law: each Member State can enforce WTO law whether or not it has a direct and personal
interest — in the interests, so to speak, of the “community of States parties”. This principle, which dates
back to the GATT period, was revived by the Appellate Body in EC — Bananas when it confirmed that
the United States had sufficient interest to bring proceedings against the European Community, even
though, in practical terms, the Americans did not export bananas. In other words, any State may initiate
dispute settlement procedures on the basis of a claim that another Member is not complying with its
obligations under WTO law.
Everything is done to ensure that the complaint, if it is substantiated, is followed by concrete
effects. After the adoption by the panel, and possibly the Appellate Body, of their “recommendations”,
WTO Members continue to monitor and to follow up the implementation by the losing country of the
conclusions of the case. Furthermore, if the conclusions are not fully implemented, the winning party
that so requests may impose countermeasures in the form of trade sanctions.
What can we conclude from all of these mechanisms? First of all they are the confirmation of a
certain “communitization” that is under way at the WTO, with an institutionalization of international
responsibility. The idea is essentially to ensure respect for the rule rather than reparation, a clear sign of
the transformation of a society into a community. It is no longer the interest of the adversely affected
party that counts, but the common interest. Indeed, violation of the law that applies to the community is
in itself an infringement of the rights of all of the States parties, which are all entitled to feel that they have
been adversely affected. In other words, responsibility is generated by an objective “fact”: it is the result
of non-compliance, whatever the consequences may be.
But what is interesting about the institutionalization of international responsibility by the Dispute
Settlement Body is that sovereign States ultimately retain a certain control on the result of peaceful
settlement of disputes. When it comes to enforcing the consequences of a DSB decision, we revert to
law in its most traditional form, since the decision in fact authorizes the State that has won the case to
exercise its right to countermeasures. The countermeasures are determined by the State itself, which is
free within the limits of the treaty and subject to arbitration, to decide on their scope. These counter-
measures (formerly “unarmed reprisals”) are the product of international law in its most traditional form:
the right of each State to take the law into its own hands. Thus, there is a margin of controlled freedom
or sovereignty, a balance between the decentralized responsibility of traditional international law and
the complete jurisdictionalization of the peaceful settlement of disputes. The WTO is one of the rare
systems to have truly succeeded in regulating the countermeasures applied by the powerful States by
making their application contingent on the prior collective approval of Members.

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 Thus, WTO law is a body of legal rules making up a system and governing a community. As
such, the WTO incorporates an integrated and distinctive legal order. Bringing together traditional
international law, which it respects, and contemporary international law, which it is helping to promote,
the WTO has become a part of the international legal order as a sui generis legal system. But how does
WTO law link up to the legal systems of other international organizations within the international legal
order?

“ THE LINK BETWEEN THE LEGAL SYSTEM OF THE WTO AND THE
LEGAL SYSTEMS OF OTHER INTERNATIONAL ORGANIZATIONS. ”

The effectiveness and legitimacy of the WTO depends on how it relates to norms of other legal
systems and on the nature and quality of its relationships with other international organizations. In order
to address more specifically the place and the role of the WTO’s legal system in the international legal
order, I will briefly discuss how the WTO’s provisions operate and treat other legal norms, including
norms developed by other international organizations. My focus will first address this issue from a
normative point of view, and then from an institutional perspective. I will show that the WTO, far from
being hegemonic as it is sometimes portrayed to be, recognizes its limited competence and the special-
ization of other international organizations. In this sense the WTO participates in the construction of
international coherence and reinforces the international legal order.

The WTO, its treaty provisions and their interpretation, confirms the absence of any hierarchy
between the WTO norms and those norms developed in other fora: WTO norms do not supersede or
trump other international norms.

In fact the GATT, and now the WTO, recognizes explicitly that trade is not the only policy
consideration that Members can favour. The WTO contains various exception provisions referring to
policy objectives other than trade, often under the responsibility of other international organizations.
Our Appellate Body has managed to operationalize these exception provisions so as to provide Mem-
bers with the necessary policy space to ensure if they do wish that their actions in various fora are
coherent.

The WTO is of course a “trade” organization; it comprises provisions that favour trade opening
and discipline trade restrictions. The basic philosophy of the WTO is that trade opening obligations are
good, and even necessary, to increase people’s standards of living and well-being. But at the same time
the GATT, and now the WTO, contains provisions of “exceptions” to these market access obligations.
The old — but still in force — Article XX of GATT provides that nothing prevents a Member from
setting aside market access obligations when a Member decides, unilaterally, that considerations other
than those of trade must prevail. This can happen when, for instance, a Member has made commit-
ments in other fora, say on an environmental issue, when such an environmental commitment may lead
to market access restrictions.
12
 The revolution brought about by WTO jurisprudence was to offer a new teleological interpre-
tation of the WTO that recognizes the place of trade in the overall scheme of States’ actions and the
necessary balance that ought to be maintained between all such policies.

How is this done within the WTO legal order?

First, and very simply, the WTO treaty was considered and interpreted as a “treaty”. In the
very first WTO dispute, an environment— related dispute (US — Gasoline) the Appellate Body con-
cluded that the Panel had overlooked a fundamental rule of treaty interpretation, expressed in the
Vienna Convention on the Law of Treaties (the “Vienna Convention”). I am sure this sounds very
obvious to you international legal experts! The Appellate Body first recalled that these general rules on
treaty interpretation had attained the status of a rule of customary or general international law. It was
important to do so because, as you may know, neither the USA nor the EC have ratified the Vienna
Convention on Treaties. Then the Appellate Body made its first statement, now famous, on the nature
of the relationship between the WTO and the international legal order: “the GATT is not to be read in
clinical isolation from public international law.”

Recalling that pursuant to Article 31 of the Vienna Convention, terms of treaties are to be given
“their ordinary meaning, in their context and in the light of the Treaty’s object and purpose”, the Appel-
late Body noted that the Panel Report had failed to take adequate account of the different words
actually used for each of the Article XX exceptions. This led to a reading that offered much more
flexibility in the so-called environment exception and a categorical turn about in 50 years of GATT
jurisprudence.

In relying on the steps and principles of the Vienna Convention, panels as well as the Appellate
Body has since often referred to the “context” of the WTO treaty and to non-WTO norms when
relevant. I’ve been told that no other international dispute system is so attached to the Vienna Conven-
tion! In my view, this insistence on the use of the Vienna Convention on Treaties is a clear confirmation
that the WTO wants to see itself being as fully integrated into the international legal order as possible.

The linkage between the WTO and other sets of international norms was also reinforced when
the Appellate Body stated that in WTO, exception provisions — referring to such non-trade concerns
(environment, morality, religion etc...) — are not to be interpreted narrowly: exceptions should be
interpreted according to the ordinary meaning of the terms of such exceptions. In this context, our
Appellate Body has insisted that exceptions cannot be interpreted and applied so narrowly that they
have no relevant or effective application.

The Appellate Body further expanded the availability of WTO exceptions in the following
manner. In WTO exceptions are subject to what we call a “necessity test”, a test having features of a

13
“proportionality” requirement. When assessing whether a measure is “necessary” for any non-WTO
concern, a new and additional balancing test is to be used.

Such an assessment will have to balance first (1) the “value” protected by such measure — and
the more important this “value”, the easier it will be to prove the necessity (and the importance of the
value will affect the entire balancing process); second (2) the choice of the measure chosen to imple-
ment such a non-trade concern — is it a complete or partial ban on trade? is it a labeling requirement?
is it a discriminatory tax?; and finally a third element (3) the trade impact of the restriction.

Once a measure prioritizing a non-trade value or standard is considered “necessary”, there is

always an assessment as to whether the measure is indeed applied in a non-protectionist manner,
pursuant to the chapeau of Article XX. Here again the Appellate Body has said that when assessing
whether a measure complies with Article XX, a “balance” between WTO market access obligations
and a government’s right to favour policies other than trade must always be kept.

Our jurisprudence has determined that the “control” exercised by the chapeau of Article XX of
GATT, against disguised protectionist measures, is in fact an expression of the “good faith” general
principle or an expression of the principle against the “abuse de droit”. I quote “the task of interpreting
and applying the chapeau is, hence, essentially the delicate one of locating and marking out a line of
equilibrium between the right of a Member to invoke an exception ... and the rights of the other Mem-
bers under varying substantive provisions .The location of the line of equilibrium, is not fixed and un-
changing; the line moves as the kind and the shape of the measures at stake vary and as the facts making
up specific cases differ.”

WTO provisions themselves recognize the existence of non-WTO norms and other legal or-
ders and attempts to limit the scope of application of its own provisions, thereby nourishing sustainable
coherence within the international legal order.

Another fundamental principle of the WTO is that Members can set national standards at the
level they wish, so long as such Members are consistent and coherent. For example, in the dispute
between Canada and the European Communities over the importation of asbestos-related material, the
Appellate Body stated clearly that France was entitled to maintain its ban since it was based on authen-
tic health risks and standards recognized in other fora and no alternative measures could guarantee zero
risk as required by the EC regulation.

An additional feature of the WTO that confirms its integration into the international legal order,
is the legal value and status it provides to international standards and norms developed in other fora.
For instance, the Sanitary and Phytosanitary (SPS) Agreement states that Members’ measures based
on standards developed in Codex Alimentarius, the International Office of Epizootics and the Interna-
tional Plant Protection Convention are presumed to be compatible with the WTO. So, while Codex,
and others do not by any means legislate in the normal or full sense, the norms that they produce have
a certain authority in creating a presumption of WTO compatibility when such international standards

14
are respected. The SPS Agreement provisions thus provide important incentives for States to base
their national standards on, or conform their national standards to, international standards. Therefore
the WTO encourages Members to negotiate norms in other international fora which they will then
implement coherently in the context of the WTO.

The WTO does, take into account other norms of international law. Absent protectionism, a
WTO restriction based on non-WTO norms, will trump WTO norms on market access. In so doing, it
expands coherence between systems of norms or legal order. Moreover, I believe that in leaving Mem-
bers with the necessary policy space to favour non-WTO concerns, the WTO also recognizes the
specialization, expertise and importance of other international organizations. In sum, the WTO is well
aware of the existence of other systems of norms and that it is not acting alone in the international
sphere.

Existing relations between the WTO and other international organizations again reflect efforts
of coherence within the international legal order. Now that the WTO is an authentic international orga-
nization will full legal personality, it has set up an important network of formal and de facto arrange-
ments with other actors on the international scene. The greater the coherence within the international
legal order, the stronger the international “community”.

The actual interactions between the WTO and other international organizations. There are, for
example, explicit WTO provisions on IMF/World Bank/WTO coherence with an explicit mandate to
the Director General. There exists a series of inter-agency cooperation on technical assistance and
capacity building with several international organizations. Indeed the current Round of negotiation is to
some extent premised on coherence, as we are suggesting a new “Aid-for-Trade programme” which
brings together several multilateral organizations and regional development banks to assist developing
countries in reaping the benefits of trade opening!

The formal cooperation agreements with other international organizations. For example, in the
area of standards setting, now have a mechanism — The Standards and Trade Development Facility
— involving the WTO, World Bank, Food and Agriculture Organization (FAO), World Health Orga-
nization and the World Organization for Animal Health. Some 75 international organizations have ob-
tained regular or ad hoc observer status in WTO bodies. The WTO also participates as an observer in
many international organizations. Although the extent of such cooperation varies, coordination and
coherence between the work of the WTO and that of other international organizations continue to
evolve in a pragmatic manner. The WTO Secretariat maintains working relations with almost 200
international organizations in activities ranging from statistics, research, standard-setting, and technical
assistance and training.

The WTO’s mantra in favour of trade openness plays a vital role in Members’ growth and
15
development, but it’s not a panacea for all the challenges of development, neither is it necessarily easy
to accomplish, nor in many circumstances can it be effective unless it is embedded in a supportive
economic, social and political context and a coherent multi-faceted policy framework. Trade opening
can only be politically and economically sustainable if it is complemented by policies which address, at
the same time, capacity problems (whether human, bureaucratic or structural); the challenges of distri-
bution of the benefits created by freer trade; the need for sustainable environment; the respect of public
morals, etc. This is also about international legal coherence.

All these policies are intertwined with the other treaty obligations of WTO Members. So fur-
ther international coherence will only assist in getting the best out of the WTO! Since WTO norms are
not hierarchically superior or inferior to any other norms (except jus cogens) States must find ways to
coordinate all these policies in a coherent manner. I believe that the WTO favours and encourages such
coherence.
If the WTO, through its dispute settlement system, can show that it does take into account the
norms of other legal orders, many still challenge the fact that it will be for the WTO judge to determine
the balance, the “line of equilibrium” between trade norms and norms of other legal orders. Indeed, at
present, if a measure has an impact on trade, the matter can always be taken to the WTO dispute
settlement system fairly simply and quickly. The WTO adjudicating body will then have to determine
whether the trade restriction can find justification in the exception provisions of the WTO. In assessing
the invocation of such WTO exception justification, the WTO judge may in fact be deciding on the
relative hierarchical value between two sets of norms.

Indeed, if a WTO Member invokes the environment exception to justify a trade restriction
adopted pursuant to a multilateral environment agreement (MEA), in practice, it is the WTO judge who
will determine whether, and the extent to which, compliance with such an MEA can provide a WTO
justification for trade restriction. If, in support of its invocation of the WTO exception for public morals,
a Member points to an International Labor Organization (ILO) resolution condemning a specific State
for violation of core labour standards, it is the WTO judge who will end up deciding on the legal value

and impact of such an ILO resolution on international trade and its opposability to trade rules.

COUNTRY OF ORIGIN

Country of origin is the country of manufacture, production, or growth where an article or

product comes from. From a marketing perspective, country of origin gives a way to differentiate the
product from the competitors. It is believed that the country of origin has an impact on the willingness to
buy a product, and studies have shown that consumers may tend to have a relative preference to
products from their own country) or may tend to have a relative preference for or aversion to certain
products that originate from certain countries.

16
 Home Country Control (also Country of Origin rule) is the rule of EU law, specifically of Single
Market law, that determines which laws will apply to goods or services that cross the border of Mem-
ber States. EU law requires that the goods or services produced legally in one Member States should
be allowed unhindered access to markets of other Member States. The latter are not allowed applying
their laws except in specific circumstances. When they are allowed to do so, this will be under a
specifically developed test called General Good Test.

The provision underlying the four feedoms (and therefore also the Home Country Control) is
the prohibition of discrimination based on nationality: Article 12(ex 6) of the EC Treaty. Over the
course of years, however, non-discriminatory behaviour also became prohibited, in as much as it cre-
ated obstacles to trade between Member States. In the sphere of goods, what these “non-discrimina-
tory” obstacles were and how they were to be removed was clarified in Cassis (C-120/78, [1979]
ECR 649) and Keck (Joined Cases C-267 and 268/91, 1993 [ECR] I-6097) cases of the Court of
Justice. In services, this was done in Säger (C-76/90, [1991] ECR I-4221), and in establishment in
Gebhard (C-55/94, [1995] ECR I-4165). The power of these cases lies in making the products and
services legally made in one state (Home State) available in other state (Host State), where the latter is
only exceptionally able to apply its law to the said good or service. In other words, once a good or a
service gains a “passport” in its Home State, it can be freely exported into any other Member State.

SUMMARY
The idea of developing international law through the restatement of existing rules or through the
formulation of new rules is not of recent origin. In the last quarter of the eighteenth century Jeremy
Bentham proposed a codification of the whole of international law, though in a utopian spirit.Since his
time, numerous attempts at codification have been made by private individuals, by learned societies and
by Governments.

Enthusiasm for the “codification movement” — the name sometimes given to such attempts —
generally stems from the belief that written international law would remove the uncertainties of custom-
ary international law by filling existing gaps in the law, as well as by giving precision to abstract general
principles whose practical application is not settled.

While it is true that only concrete texts accepted by Governments can directly constitute a body
of written international law, private codification efforts, that is, the research and proposals put forward
by various societies, institutions and individual writers, have also had a considerable effect on the
development of international law. Particularly noteworthy are the various draft codes and proposals
prepared by the Institut de Droit International, the International Law Association (both founded in
1873) and the Harvard Research in International Law (established in 1927), which have facilitated the
work of various diplomatic conferences convened to adopt general multilateral conventions of a law-
making nature.
17
 Intergovernmental regulation of legal questions of general and permanent interest may be said
to have originated at the Congress of Vienna (1814-15), where provisions relating to the regime of
international rivers, the abolition of the slave trade and the rank of diplomatic agents were adopted by
the signatory Powers of the Treaty of Paris of 1814. Since then, international legal rules have been
developed at diplomatic conferences on many other subjects, such as the laws of war on both land and
sea, the pacific settlement of international disputes, the unification of private international law, the pro-
tection of intellectual property, the regulation of postal services and telecommunications, the regulation
of maritime and aerial navigation and various other social and economic questions of international
concern.

Although many of these conventions were isolated events dealing with particular problems and
in some cases applied only to certain geographic regions, a substantial number of them resulted from a
sustained effort of Governments to develop international law by means of multilateral conventions at
successive international conferences.

QUESTIONS:
1. Define International Law?
2. How is International Law Interpreted?
3. How is International Law enforced by states and by international bodies?
4. Define trade?
5. Describe World Trade Organization?

18
 CHAPTER - II
THE SOURCES OF INTERNATIONAL LAW

O BJECTIVE
Sources of international law are the materials and processes out of which the rules and prin-
ciples regulating the international community are developed. They have been influenced by a range of
political and legal theories. During the19 th century, it was recognized by legal positivist that a sovereign
could limit its authority to act by consenting to an agreement according to the principle pacta sunt
servanda.Pacta sunt servanda (Latin for “pacts must be respected”) is a Brocard, a basic principle of
civil law and of international law.

In its most common sense, it refers to private contracts, stressing that contained pacts and
clauses are law between the parties, and implies that the non-fulfilment of respective obligations is a
breach of the pact. The general principle of correct behaviour in commercial praxis — and implies the
bona fide — is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes
punished by the law of some systems even without any direct damages incurred by any of the parties.
With reference to international agreements, “every treaty in force is binding upon the parties to
it and must be performed by them in good faith” (in the words of the Vienna Convention on the Law of
Treaties, signed at Vienna on 23 May 1969, entered into force 27 January 1980, art. 26, and the
Vienna Convention on the Law of Treaties between States and International Organizations or between
International Organizations, signed at Vienna on 21 March 1986, not yet entered into force, art. 26).

The rule of pacta sunt servanda is based on good faith; this entitles states to require that obliga-
tions be respected and to rely upon the obligations being respected. This good faith basis of treaties
implies that a party to the treaty cannot invoke provisions of its domestic law as justification for a failure
to perform.
The only limit to pacta sunt servanda is jus cogens, i.e., peremptory norms of general interna-
tional law.)
This consensual view of international law was reflected in the 1920 Statute of the Permanent
Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the The term
“international community” is a phrase that can refer to either:
“ All the lands represented in United Nations.”

The United Nations (UN) is an international organization whose stated aims are to facilitate co-
operation in international law, international security, economic development, and social equity. It was
founded in 1945 at the signing of the United nations chapter by 51 countries, replacing the League of
Nations founded in 1919The UN was founded after the end of World War 11 by the victorious allied
powers in the hope that it would act to prevent and intervene in conflicts between nations and make

19
future wars impossible or limited. The organization’s structure still reflects in some ways the circum-
stances of its founding, which has led to calls for reform. The five permanent members of the UN
Security council each of which has veto power on any UN resolution, are the main victors of World
War II or their successor states: People Republic Of China (which replaced the Republic of China),
France Russia(which replaced the Soviet Union), the United Kingdom and the United States.

POLITICAL PHILOSOPHY
It is the study of fundamental questions about the state,government,politics,liberty
justice,property,rights,law and the enforcement of a legal code by authority, what they are, why (or
even if) they are needed, what makes a government legitimate, what rights and freedoms it should
protect and why, what form it should take and why, what the law is, and what duties citizens owe to a
legitimate government, if any, and when it may be legitimately overthrown—if ever. In a vernacular
sense, the term “political philosophy” often refers to a general view, or specific ethic, belief or attitude,
about politics that does not necessarily belong to the technical discipline of philosophy..

Three central concerns of political philosophy have been the political economy by which prop-
erty rights are defined and access to capital is regulated, the demands of justice in distribution and
punishment, and the rules of truth and evidence that determine judgments in the law.

LAW
Law (from Old English lagu “something laid down or fixed”; legal comes from Latin lex “law”)
has been defined as a “system of rules”, as “any system of regulations to govern the conduct of the
people of a community, society or nation”, as an “interpretive concept” to achieve justice, as an “au-
thority” to mediate people’s interests, and even as “the command of a sovereign, backed by the threat
of a sanction”.

Laws inform everyday life and society in a wide variety ways, reflected by numerous branches
of law. Contract law regulates everything from buying a bus ticket to obligations in the workplace.
When buying or renting,property law defines people’s rights and duties towards a bank or landlord.
When earning pensions,trust law protects savings. Trot law allows claims for compensation when some-
one or their property is harmed. But if the harm is criminalised, and the act is intentional, then criminal
law offers means to prosecute the perpetrator. Society itself is built upon law: constitutional law pro-
vides a framework for making new laws, protecting people’s human rights, and electing political repre-
sentatives, while administrative law allows ordinary citizens to challenge the way government bodies
exercise their power. As globalisation has advanced, frameworks of international laws have been de-
veloped that may privilege corporations and free trade and, alternatively, that may protect civil rights,
worker’s rights and the environment. Legal systems around the world elaborate legal rights and re-
sponsibilities in different ways. A basic distinction is made between civil law jurisdictions and systems
using common law. Small numbers of countries still base their law on religious law.

20
 Scholars investigate the nature of law in many disciplines, including legal history, philosophy
(jurisprudence), and social sciences, such as criminology,ecnomics,politics, and sociology of law. The
study of law raises important questions about equality,fairness and justice. The main legal institutions
are the judiciary, the legislature,executive,government with its bureaucracy, the military and police,legal
professionals and civil society in general.

LEGAL SUBJECTS
Different countries often categorise and name legal subjects in different ways. Sometimes people
distinguish “public law” subjects, which relate closely to the state (including constitutional, administra-
tive and criminal law), from “private law” subjects (including contract, tort, property). In civil law
systems contract and tort fall under a general law of obligations and trusts law is dealt with under
statutory regimes orinternational conventions. All legal systems deal with the same issues, because the
same questions are raised in every society. To practice law, students usually learn certain core subjects,
which for example in England are European Community law,constitutional and administrative law,criminal
law,contract,trot,property law and trusts. However there are many further disciplines, which may be of
even greater practical importance than the traditional core subjects and outside the EU, students may
focus on different agreements under international law, such as NAFTA,SAFTA,CSN,ASEAN or the
African Union. The best way to grasp the importance of these subjects is careful individual study.
INTERNATIONAL LAW
Providing a constitution for public international law, the United Nations was conceived during
World War II.
In a global economy, law is globalising too. International law can refer to three things, public
international law, private international law or conflict of laws and the law of supranational organisations.
• Public International law concerns the relationships between sovereign nations. Public interna-
tional law has a special status, because it has no police force, and its courts lack the capacity to
punish disobedience. The sources of its development are custom, practice and treaties between
sovereign nations. The United Nations, founded under the UN Charter and the Universal Dec-
laration of Human Rights is the most important international organisation, established after the
failure of the Versailles Treaty and World War II. Other international agreements, like the Geneva
Conventions on the conduct of war and international bodies such as the International Labour
Organisation, the World Trade Organisation, or the International Monetary Fund also form a
growing part of public international law.

• Conflict of Laws (or “private international law” in civil law countries) concerns which jurisdic-
tion a legal dispute between private parties should be heard in and which jurisdiction’s law
should be applied. Today businesses are increasingly capable of shifting capital and labour sup-
ply chains across borders, as well as trading with overseas businesses. This increases the num-

21
 ber of disputes outside a unified legal framework and the enforceability of standard practices.
Increasing numbers of businesses opt for commercial arbitration under the New York Conven-
tion 1958.

• European Union law is the first and only example of a supranational legal framework. How-
ever, given increasing global economic integration, many regional agreements, especially the
South American Community of Nations, are on track to follow the same model. In the EU,
sovereign nations have pooled their authority through a system of courts and political institutions.
They have the ability to enforce legal norms against and for member states and citizens, in a way
that public international law does not. Therefore, European Union law constitutes “a new legal
order of international law” for the mutual social and economic benefit of the member states.
CONSTITUTIONAL AND ADMINISTRATIVE LAW
The French Declaration of the Rights of the Man and of the Citizen, whose principles still have
constitutional value.
Constitutional and administrative law govern the affairs of the state. Constitutional law con-
cerns both the relationships between the executive, legislature and judiciary and the human rights or civil
liberties of individuals against the state. Most jurisdictions, like the United States and France, have a
single codified constitution, with a Bill of Rights. A few, like the United Kingdom, have no such docu-
ment; in those jurisdictions the constitution is composed of statute, case law and convention. “ The
fundamental constitutional principle, inspired by John Locke, is that the individual can do anything but
that which is forbidden by law, while the state may do nothing but that which is authorised by law.
Administrative law is the chief method for people to hold state bodies to account. People can apply for
judicial review of actions or decisions by local councils, public services or government ministries, to
ensure that they comply with the law. The first specialist administrative court was the Conseil d’Etat
set up in 1799, as Napoleon assumed power in France.

CRIMINAL LAW
Criminal law is the body of law that defines criminal offences and the penalties for convicted
offenders. Apprehending, charging, and trying suspected offenders is regulated by the law of criminal
procedure. In every jurisdiction, a crime is committed where two elements are fulfilled. First, the crimi-
nal must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Second, he
must commit the criminal act, or actus reus (guilty act). Examples of different kinds of crime might
include murder, assault, fraud or theft. In exceptional circumstances, defences can exist to some crimes,
such as killing in self defence, or pleading insanity.

The offenses that involve criminal law are those construed as being against the state. In com-
mon law countries the government takes the lead in prosecution and cases are cited as “The People v.
...” or “R. v. ...” Also, in many countries, lay juries determine the guilt of defendants on points of fact,
22
although they may not change legal rules themselves. Some developed countries still have capital pun-
ishment and torture for criminal activity, but the normal punishment for a crime will be imprisonment,
fines, or community service. Modern criminal law has been affected considerably by the social sci-
ences, especially with respect to sentencing, legal research, legislation, and rehabilitation On the inter-
national field 104 countries have signed up to the International Criminal Court, which was set up to try
people for crimes against humanity.

CONTRACT
Contract is based on the Latin phrase pacta sunt servanda (promises must be kept). Con-
tracts include both complex multi-party agreements and numerous forms of simple transactions that
many people make every day, and can be made orally (e.g. buying a newspaper in a shop) or in writing
(e.g signing a contract of employment). Sometimes formalities, such as writing the contract down or
having it witnessed, are required for the contract to take effect (e.g. when buying a house).

In common law jurisdictions there are three key elements to the creation of a contract. These
are offer and acceptance, consideration and an intention to create legal relations. “Consideration”
means all parties to a contract must exchange something of value to be able to enforce it. However, in
civil law jurisdictions, consideration is not necessarily a requirement for a contract.When contracts are
invalidated for some reason, e.g. a car buyer is so drunk that he lacks legal capacity to contract, the
contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust
enrichment law, rather than contract law, is then used to restore title to the rightful owner.

TORT
Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached
a duty to another person, or infringed some pre-existing legal right. A simple example might be acciden-
tally hitting someone with a cricket ball. The most common tort is negligence; in negligence law, an
injured party can make a claim against another party responsible for the injury in question. Its principles
are illustrated by Donoghue v. Stevenson. Mrs Donoghue ordered an opaque bottle of ginger beer in
a cafe in Paisley. Having consumed half of it, she poured the remainder into a tumbler. The decompos-
ing remains of a dead snail floated out. She fell ill and sued the manufacturer for carelessly allowing the
drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs
Donoghue’s illness. Lord Atkin took a distinctly moral approach, and said,
“The liability for negligence... is no doubt based upon a general public sentiment of
moral wrong doing for which the offender must pay... The rule that you are to love
your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s
question, Who is my neighbour? receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to injure
your neighbour.”

23
 This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs.
Donoghue a duty of care to provide safe drinks, (2) he breached his duty of care, (3) the harm would
not have occurred but for his breach, and (4) his act was the proximate cause, or not too remote a
consequence, of her harm.

PROPERTY LAW
Property law governs everything that people call ‘theirs’. Real property, sometimes called ‘real
estate’ or a right in rem refers to ownership of land and things attached to it. Personal property, or a
right in personam refers to everything else; movable objects, like computers or sandwiches or intan-
gible rights, like company shares or a copyright on a song. The classic civil law approach to property,
propounded by Friedrich Carl von Savigny is that it is a right good against the world. This contrasts to
an obligation, like a contract or tort, which is a right good between individuals. Preferred in common
law jurisdictions is an idea closer to an obligation; that the person who can show the best claim to a
piece of property, against any contesting party, is the owner. The idea of property raises important
philosophical and political issues. John Locke famously argued that our “lives, liberties and estates” are
our property because we own our bodies and mix our labour with our surroundings. But property is still
a contentious concept. French philosopher Pierre Proudhon most famously proclaimed, “property is
theft”.

Land law forms the basis for most kinds of property law, and is the most complex. It concerns
mortgages, rental agreements, licences, convenants, easements and the statutory systems for registra-
tion of land. Regulations on the use of personal property fall under intellectual property, company law,
trusts and commercial law.

TRUSTS AND EQUITY

Equity is a body of rules from England that used to be separate from the “common law”. Whilst
“law” was administered by judges, the King’s Lord Chancellor had authority to overrule them and
determine cases by good conscience, if he felt the judges’ laws were too strict. Equity operates on the
basis of certain principles rather than rigid rules and became a major innovation for property law.
Whereas civil law systems, and the common law, do not allow two people to split ownership of one
piece of property, equity allows this through the trust instrument. So called ‘trustees’ may control
property, whereas the ‘beneficial’ (or ‘equitable’) ownership of trust property is held by people known
as ‘beneficiaries’. Nowadays, equity and the law are administered by the same courts and judges, and
trusts are used mostly for holding large amounts of money. The most familiar kind of trust is a pension
fund, where banks are trustees for people’s savings until their retirement. Company law is historically
based on the trust instrument. But trusts can also be set up for charitable purposes, famous examples
being the British Museum or the Rockefeller Foundation.

24
 Trustees owe things called equitable and fiduciary duties to the beneficiaries who they hold trust
property for. They must use the trust property for the benefit of the beneficiaries, rather than for them-
selves. Depending on the particular trust law of the jurisdiction, the nature of the trust property and the
terms of the instrument that created the trust, the trustees will usually be expected to invest it or sell it,
allow the beneficiaries to reside in it, or to transfer it to the beneficiaries absolutely.

FURTHER DISCIPLINES
Law spreads far beyond the core subjects, into practically every area of life. Three categories
are presented for convenience, though the subjects intertwine and flow into one another.
• Individual employment law is the study of a tripartite industrial relationship, between
worker, employer and trade union. This involves collective bargaining regulation, and the
right to strike. Individual employment law refers to workplace rights, such as health and
safety or a minimum wage.
• Human rights and Human rights law are important fields to guarantee everyone basic
freedoms and entitlements. These are laid down in codes such as the Universal Declaration
of Human Rights, the European convention on human rights and the U.S. Bill of Rights.
• Civil procedure and Criminal procedure concern the rules that courts must follow as a
trial and appeals proceed. Both concern everybody’s right to a fair trial or hearing.
• Evidence law involves which materials are admissible in courts for a case to be built.
• Immigration law and Nationality law concern the rights of foreigners to live and work in
a nation state that is not their own and to acquire or lose citizenship. Both also involve the
rights of asylum and the problem of stateless individuals.
• Social security law refers to the rights people have to social insurance, such as jobseekers
allowances or housing benefits.
• Family law covers marriage and divorce proceedings, the rights of children and of course
the rights to property and money in the event of separation.

LAW AND COMMERCE

• Commercial law is essentially complicated contract law. It deals with the Sale of Goods
Acts and codified common law of commercial principles.
• Company law sprung from the law of trusts, on the principle of separating ownership and
control. The law of the modern company began with the Joint Stock Companies Act,
passed in the United Kingdom in 1865, which protected investors with limited liability and
conferred separate legal personality.

25
 • Intellectual property deals with patents, trademarks and copyrights. These are intangible
assets, like the right not to have your idea for an invention stolen, a brand name or a song
you have written.
• Restitution deals with the recovery of someone else’s gain, rather than compensation for
one’s own loss.
• Unjust enrichment is law covering a right to retrieve property from someone that has
profited unjustly at another’s expense.
LAW AND REGULATION
• Tax law is probably the most complicated and well paid discipline, involving Value Added
Tax, Corporation Tax, Income Tax, and most importantly, lots of money.

• Banking law and financial regulation set minimum standards on the amounts of capital
banks must hold, and rules about best practice for investment. This is to insure against the
risk of economic crises, such as the Wall Street Crash.
• Regulated industries are attached to an important body of law, for instance water law, for
the provision of public services. Especially since privatisation became popular, private com-
panies doing the jobs previously controlled by government have been bound by social
responsibilities. Energy, gas telecomms and water are regulated industries in most OECD
countries.
• Competition law, in the U.S. known as antitrust law, is an evolving and relatively new kind
of law.
• that began in the late 19th Century with the restraint of trade doctrine. The U.S. adopted
anti-cartel and anti-monopoly statutes around the turn of that century.
• Consumer Law could include anything from regulations on unfair contract terms and con-
ditions, or directives on airline baggage insurance.
• Environmental law is increasingly important, especially in light of the Kyoto Protocol and
the imminent danger of climate change. Environmental protection also serves to penalise
polluters within countries.

LEGAL SYSTEMS
In general, legal systems around the world can be split between civil law jurisdictions on the
one hand and on the other systems using common law and equity. The term civil law, referring to a legal
system, should not be confused with civil law as a group of legal subjects, as distinguished from criminal
law or public law. A third type of legal system, still accepted by some countries in part, or even in whole,
is religious law, based on scriptures and interpretations thereof. The specific system that a country

26
follows is often determined by its histories, and countries that have been historically linked often follow
similar systems. The classification of different systems is a matter of form rather than substance, since
similar rules often prevail. The sources that jurisdictions recognise as authoritatively binding are the
defining features of legal systems.

CIVIL LAW
Civil law is the legal system used in most countries around the world today. In civil law, the
sources recognised as authoritative are codifications, in constitutions or statutes passed by government.
Codifications date back millenia, with one early example being the ancient Babylonian Codex Hammurabi,
but modern civil law systems essentially derive from the legal practice of the Roman Empire, whose
texts were rediscovered in medieval Europe. Roman law, in the days of the Roman republic and Em-
pire, was heavily procedural and there was no professional legal class. Instead a lay person, iudex, was
chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised
and almost unrecognised. Each case was to be decided afresh from the laws of the state, which mirrors
the (theoretical) unimportance of judges’ decisions for future cases in civil law systems today. During
the 6th century AD, in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the
laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from
before.[44] This became known as the Corpus Juris Civilis. As one legal historian wrote, “Justinian
consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had
reached three centuries before” Western Europe, meanwhile, slowly slipped into the dark ages, and it
was not until the eleventh century AD that in scholars in the University of Bologna rediscovered the
texts and used them to interpret their own laws.

Civil law codifications based closely on Roman law continued to spread throughout Europe
until the Enlightenment; then, in the nineteenth century, both France, with the Code Civil and Germany,
with the Bürgerliches Gesetzbuch modernised their legal codes. Both these codes influenced heavily
not only the law systems of the countries in continental Europen (e.g. Greece), but also the Japanese,
and Korean legal traditions. Today countries that have civil law systems range from Russia, and China
to most of central and Latin America.
COMMON LAW AND EQUITY
Common law and equity are systems of law whose special distinction is the doctrine of prece-
dent, or stare decisis (Latin for “to stand by decisions”). Alongside this “judge made law”, common
law systems always have governments who pass new laws and statutes. But these are not put into a
codified form. Common law comes from England and was inherited by almost every country that once
belonged to the British Empire, with the exceptions being Malta, Scotland and the US state of Louisi-
ana.
Common law had its beginnings in the middle ages, when the English monarchy had been
weakened by the enormous cost of fighting the crusades. King John had been forced by his barons to

27
sign a document limiting his authority to pass laws. This “great charter” or Magna Carta of 1215 also
required that the King’s entourage of judges hold their courts and judgments at “a certain place” rather
than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite
group of judges acquired a dominant role in law making under this system, and compared to its Euro-
pean counterparts the English judiciary became highly centralised. In 1297, for instance, while the
highest court in France had fifty one judges, the English Court of Common Pleas had five. This powerful
and tight-kinit judiciary gave rise to a rigid and inflexible system of common law. As a result, as time
went on increasing numbers of citizens petitioned the King to override the common law, and on the
King’s behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of
Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity
grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was
often criticised as erratic, and was said to vary with the length of the Lord Chancellor’s foot. But over
time it developed solid principles. In the nineteenth century the two systems were fused into one an-
other. Academic authors have always played an important part in developing the common law. William
Blackstone was the first scholar to describe and teach it. In fact, people who sought explanations and
underlying structures changed the way the law worked merely by describing it.

RELIGIOUS LAW
Religious law refers to the notion that the word of God is a law. Examples include the Jewish
Halakha and Islamic Sharia, both of which mean the “path to follow”. Christian Canon law also sur-
vives in some Church communities. The implication of religion for law is unalterability, because the
word of God cannot be ammended or legislated against by judges or governments. However, religious
texts never include the scale of law needed in a developed community. For instance, the Koran has
some law, but not much and it acts merely as a source of further law, through interpretation. This is
mainly contained in a body of jurisprudence known as the fiqh. In some cases religious law is intended
purely as individual moral guidance. The first five books of the Old Testament are known as the Torah
and include Genesis, Exodus, Leviticus, Numbers and Deuteronomy. The Halakha is the interpretation
of teachings and is followed by orthodox and conservative Jews in both ecclesiastical and civil rela-
tions. No country is fully governed by Halakha, but two Israeli people may decide, because of personal
belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia law similarly is
merely an optional supplement to the civil or common law of most countries, though Saudi Arabia and
Iran’s whole legal systems source their law in Sharia. Canon law is only in use by members of the clergy
the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.
JURISDICTIONS
Despite the usefulness of different classifications, every legal system has its own individual
identity. Below are groups of legal systems, categorised by their geography. Click the “show” buttons
on the right for the lists of countries.

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LEGAL THEOR
THEORYY

HISTORY OF LAW
The history of law is closely connected to the development of civilizations. Ancient Egyptian
law, dating as far back as 3000BC, had a civil code that was probably broken into twelve books. It
was based on the concept of Ma’at, characterised by tradition, rhetorical speech, social equality and
impartiality. Around 1760 BC under King Hammurabi, ancient Babylonian law was codified and put in
stone for the public to see in the marketplace. This became known as the Codex Hammurabi, which
was found in a stone engraving. But like Egyptian law, which is pieced together by historians from
records of litigation, few sources remain. The influence of these earlier laws on later civilizations was
small. The Torah from the Old Testament is probably the oldest body of law still relevant for modern
legal systems, dating back to 1280BC. It takes the form of moral imperatives, like the Ten
Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the
small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women
and the slave class. Athens had no legal science, and Ancient Greek has no word for “law” as an
abstract concept Yet Ancient Greek law contained major constitutional innovations in the development
of democracy.
Roman law was heavily influenced by Greek teachings. It forms the bridge to the modern legal
world, over the centuries between the rise and decline of the Roman Empire. Roman law underwent
major codification in the Corpus Juris Civilis of Emperor Justinian. Roman law was lost through the
Dark Ages, but rediscovered around the eleventh century. Mediæval legal scholars began researching
the Roman codes and using their concepts. In Mediæval England, the King’s powerful judges began to
develop a body of precedent, which became the common law. But also, a Europe wide lex mercatoria
was formed, so that merchants could trade using familiar standards, rather than the many splintered
types of local law. A precursor to modern commercial law, the lex mercatoria emphasised the freedom
of contract and alienability of property. As nationalism grew in the 18th and 19th centuries, lex mercatoria
was incorporated into countries’ local law under new civil codes. The French Napoleonic Code and
the German became the most influential. As opposed to the common law used in England, or the
U.S.A. consisting of massive tomes of case law, codes in small books are easy to export. However,
today there are signs that civil and common law are converging. European Union law is codified in
treaties, but develops through the precedent laid down by the European Court of Justice.
The Constitution of India is the longest written constitution for a country, containing 444 articles,
12 schedules, numerous amendments and 117,369 words

Ancient India and China represent distinct traditions of law, and had historically independent
schools of legal theory and practice. The Arthashastra, dating from the 400BC, and the Manusmriti
from 100AD were influential treatises in India, texts that were considered authoritative legal guidance
Manu’s central philosophy was tolerance and pluralism, and was cited across South East Asia. But this

29
Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of
the British Empire Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The
legal tradition of the Eastern Asia reflects a unique blend of secular and religious influences. Japan was
the first country to begin modernising its legal system on western lines, by importing the French, but
mostly the German Civil Codes. This partly reflected Germany’s status as a rising power in the late
nineteenth century and traditional Chinese law gave way towards the final years of the Ch’ing dynasty
to westernisation in the form of six private law codes based mainly on the Japanese model of German
law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of
the split between Chang Kai Shek’s nationalists, who fled there, and Mao Tse Tung’s communists who
won control of the mainland in 1949. The current legal infrastructure in the People’s Republic of China
was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense
of private law rights. Today, however, because of rapid industrialisation, China has been reforming, and
a new contract code in 1999 represented a turn away from administrative domination Furthermore,
after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.

PHILOSOPHY OF LAW
The philosophy of law is known as jurisprudence. Normative jurisprudence is essentially political
philosophy and asks “what should law be?”. Analytic jurisprudence asks on the other hand, “what is
law?”. An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first
chair of law at the new University of London from 1829. Austin’s utilitarian answer was that law is
“commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of
obedience”. This approach was long accepted, especially as an alternative to natural law theory. Natural
lawyers, such as Jean-Jacques Rousseau, argue human law reflects essentially moral and unchangeable
laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws “be chosen as
though they should hold as universal laws of nature”. Austin and Bentham, following David Hume
thought this conflated what “is” and what “ought to be” the case. They believed in law’s positivism, that
real law is entirely separate from “morality”.Bentham’s utilitarian theories remained dominant in law till
the twentieth century
Later in the twentieth century H.L.A. Hart attacked Austin for his simplifications and Kelsen for
his fictions in The Concept of Law. As the chair of jurisprudence at Oxford University, Hart argued law
is a “system of rules”. Rules, said Hart, are divided into primary rules (rules of conduct) and secondary
rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of
adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of
recognition (allowing laws to be identified as valid). Two of Hart’s students have continued the debate
since. Ronald Dworkin was his successor in the Chair of Jurisprudence at Oxford and his greatest
critic. In his book Law’s Empire Dworkin attacked Hart and the positivists for their refusal to treat law
as a moral issue. Dworkin argues that law is an “interpretive concept”, that requires judges to find the
best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz on

30
the other hand has defended the positivist outlook and even criticised Hart’s ‘soft social thesis’ approach
in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources,
without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative
dispute mediation is best left to sociology, rather than jurisprudence.

ECONOMIC ANALYSIS OF LAW

Economic analysis of law is an approach to legal theory that incorporates and applies the
methods and ideas of economics to law. The discipline arose partly out of a critique of trade unions and
U.S. Antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and
the so called Chicago School of economists and lawyers, such as Milton Friedman and Gary Becker,
are generally advocates of deregulation and privatization, and are hostile to state regulation, or what
they see as restrictions on the operation of free markets.

SOCIOLOGY OF LAW
Sociology of law is a diverse field of study which includes social scientific investigations of the
institutions of law, the professionalisation of law and lawyers, the social construction of legal issues and
systems, and the interaction of legal institutions, doctrines, and practices with other aspects of society.
The field was initially received with suspicion by legal theorists, such as Kelsen, who attacked one of its
founders, Eugen Ehrlich. Weber, who was also critical towards Ehrlich, defined the scope of a new
social scientific approach to law, while his theories influenced Karl Horvath, Hugo Sinzheimer, and
Theodor Geiger. Other important early contributors to the sociology of law were Emile Durkheim,
Georges Gurvitch and Leon Petra¿ycki in Europe, and Roscoe Pound and William Graham in the U.S.

LEGAL INSTITUTIONS
The main institutions of law in industrialised countries are independent courts, representative
parliaments, an accountable executive, the military and police, bureaucratic organisation, the profession
of lawyers and civil society itself. John Locke in Two Treatises On Civil Government and Baron de
Montesquieu after him in The Spirit of the Laws advocated a separation of powers between the
institutions that wield political influence, namely the judiciary, legislature and executive. Their principle
was that no person should be able, as Thomas Hobbes wanted an all powerful sovereign to be, to
usurp a Leviathan of power. More recently Max Weber and many others reshaped thinking about the
extensions of the state that come under the control of the executive. Modern military, policing and
bureaucratic power over ordinary citizens’ daily lives pose special problems for accountability that
earlier writers like Locke and Montesquieu could not have foreseen. The custom and practice of the
legal profession itself is an important part of people’s access to justice, whilst civil society is a term used
to refer to the social institutions, communities and partnerships that are the political base of the law.

31
JUDICIARY
A judiciary is a group of judges who mediate and determine the outcome of peoples’ disputes.
Most countries have a system of appeals courts, up to a supreme authority. In the U.S. this is the
Supreme Court or in Australia, the High Court. In the U.K. the highest court is the House of Lords, In
Germany there is a Supreme Federal Constitutional Court, while the main court of last resort in France
is the Cour de Cassation. However, for most European countries the European Court of Justice in
Luxembourg may overrule national law, where EU law is relevant. Also the European Court of Human
Rights in Strasbourg allows any European citizen to appeal cases to it, where human rights issues arise.
Almost every country in the world allows its highest judicial authority to strike down legislation
that is determined to be unconstitutional. For instance, the United States Supreme Court struck down
a Texan law forbidding women to be assisted with abortion in Roe v. Wade. The constitution’s fourteenth
amendment is interpreted to give Americans a right to privacy, and a woman’s right to choose to have
an abortion is part of that. The judiciary is theoretically bound by a constitution, as much legislatures
are. In most countries judges may only interpret the constitution, and all other laws. However in common
law countries, where matters are not constitutional, the judiaciary may also create law under the doctrine
of precedent. On the other hand, the United Kingdom, Finland and New Zealand still assert the ideal of
parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic
legislature.
LEGISLATURE
The Houses of Parliament in London, the Congress in Washington D.C., the Bundestag in
Berlin, the Duma in Moscow and the Assemblée nationale in Paris are all examples of legislatures. The
principle of representative government means that people vote for political decision makers to carry out
their wishes. Although some countries, including Israel,Greece, Sweden and China, are unicameral,
having only one legislative chamber, most legislatures are bi-cameral, consisting of two chambers or
houses. In a ‘lower house’ politicians are elected to represent smaller constituencies. The ‘upper house’
is usually elected to represent a larger state in a federal system (as in Australia or Germany), or a
different voting configuration (as in France) or in a unitary system the upper house is appointed to be
advisors of the Crown (as in the UK). One criticism of bicameral systems with two elected chambers
is that the upper and lower houses may simply mirror one another. On the other hand, the traditional
justification of bicameralism is that it minimises arbitrariness and injustice in governmental action.

To pass legislation a majority of Members of Parliament must vote for a bill in each house.
Normally there will be several readings and amendments proposed by the different political factions. If
a country has an entrenched constitution a special majority for changes to the constitution will be
required, making changes to the law more difficult. A government usually leads the process, which can
be formed from Members of Parliament (e.g. the U.K. or Germany). But in a presidential system, an
executive appoints a cabinet to govern from his or her political allies whether or not they are elected
(e.g. the U.S. or Brazil) and the legislature’s role is reduced to either ratification or veto.
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EXECUTIVE
Hu Jintao is both president and head of China’s only legal political party
The “executive” in a legal system refers to the governing centre of political authority. In most
democratic countries, like the UK, Germany, India and Japan, the executive is elected into and drawn
from the legislature and is known as a cabinet. Alongside there is usually a head of state without formal
political power, who symbolically enacts laws. This figure can be appointed (such as the Bundespräsident
in Germany), hereditary (like the Queen of the United Kingdom) or elected by poplular vote (as is the
President of Austria). The other important model is found in countries like France, the U.S. and Russia.
Under such presidential systems the executive branch exists and presides separately from the legislature,
to which it is not accountable, and which cannot in normal circumstances dismiss it.

The executive’s role may vary from country to country. Usually, it will initiate or propose the
majority of legislation and deal with a country’s foreign relations. The military and police often fall under
executive control, as does the bureaucracy. Ministers, or secretaries of state of the government head a
country’s public offices, such as the health department, or the department of justice. The election of a
different executive is therefore capable of revolutionising an entire country’s approach to government.

BUREAUCRACY
Bureaucracy was satirised by the British comedy Yes Minister in the so called “Department of
Administrative Affairs”
The word “bureaucracy” derives from the French for “office” (bureau) and Ancient Greek for
“power” (kratos). It refers to all government servants and bodies who carry out the wishes of the
executive.

Cynicism over “officialdom” is still common, and the workings of public servants is often
contrasted to private enterprise driven by the profit motive. Writing in the early 20th century, Max
Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.
Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission,
the scope of work is bound by rules, management is composed of career experts, top down, they
communicate through writing and bind public servants discretion with rules.Although private companies
typically have bureaucracies as well, public bureaucratic action is the locus of government power.
Bureaucracy can play a negative role with ever more “red tape”, or a positive one, by organising public
services such as schooling, health care, policing or public transport.

LEGAL PROFESSION
Lawyers give people advice about their legal rights and duties and represent them in court, for
the law to be adequately accessible to everyone, and for people to be able to foresee what law means
for them. Practice of law is typically overseen by either a government organization or independent
regulating body such as a bar association, bar council, barrister society, or law society. An aspiring

33
practitioner of law must be certified by the regulating body before beginning to practice. This usually
entails a two or three-year program at a university faculty of law or a law school, which earns the
student a Bachelor of Laws, a Bachelor of Civil Law or a Juris Doctor degree. This course of study is
followed by an entrance examination (e.g. bar admission). Some countries require a further vocational
qualification before a person is permitted to practice law. In the case of those wishing to become a
barrister, this would lead to a Barrister-at-law degree, followed by a year’s apprenticeship (sometimes
known as pupillage or devilling) under the oversight of an experienced barrister (or master). Advanced
law degrees are also often pursued, though they are academic degrees and are not required for the
practice of law. These include a Master of Laws, a Master of Legal Studies, and a Doctor of Laws.

Once accredited, a lawyer will often work in a law firm, in a chambers, as a sole practitioner,
for a government or as internal counsel at a private corporation. Another option is to become a legal
researcher who provides on-demand legal research through a commercial service or on a freelance
basis. Many people trained in law put their skills to use outside the legal field entirely. A significant
component to the practice of law in the common law tradition involves legal research in order to
determine the current state of the law. This usually entails exploring case-law reports, legal periodicals
and legislation. Law practice also involves drafting documents such as court pleadings, persuasive
briefs, contracts, or wills and trusts. Negotiation and dispute resolution skills are also important parts of
legal practice, depending on the field.

SUMMARY
The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers,
is unclear and controversial but may include such legal principles that are common to a large number of
systems of municipal law. Given the limits of treaties or custom as sources of international law, Article
38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet
by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from
municipal law. In the 19th century, legal positivists rejected the idea that international law could come
from any source that did not involve state will or consent, but were prepared to allow for the application
of general principles of law, provided that they had in some way been accepted by states as part of the
legal order. Thus Article 38(1)(c), for example, speaks of general principles “recognised” by states. An
area that demonstrates the adoption of municipal approaches is the law applied to the relationship
between international officials and their employing organisations, although today the principles are
regarded as established international law.
The significance of general principles has undoubtedly been lessened by the increased intensity
of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity
have been employed in the adjudication of international disputes. For example, a state that has, by its
conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and

34
to rely upon that belief, may be estopped from asserting a contrary situation in its dealings. The principle
of good faith was said by the ICJ to be “One of the basic principles governing the creation and
performance of legal obligations”. Similarly, there have been frequent references to equity. It is generally
agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This
“equity as law” perception is reinforced by references to equitable principles in the text of the United
Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to
the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as “general” signify that, if
rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass
similar rules existing in many municipal systems. Principles of municipal law should be regarded as
sources of inspiration rather than as sources of rules of direct application.

The decisions of international and municipal courts and the publications of academics can be
referred to, not as a source of law as such, but as a means of interpreting the law established in other
sources. In practice the International Court of Justice does not refer to domestic decisions although it
does invoke its previous case-law.

There is no rule of state decision in international law.

The International Court of Justice will often consider the draft Articles on international law
published by the International Law Commission as authoritative statements on international law. Often
they will consider General Assembly resolutions as indicative of customary international law.

QUESTIONS:
1. Write notes on
(a) Pacta sunt Servanda (b) International Community
2. Write an essay on United Nations?
3. Define Law & International law?
4. What are Legal Subjects?
5. Write notes on
(a) Contract (b) Tort (c) Property law (d) Trusts and Equity
(e) Human Rights (f) Civil procedure and Criminal procedure (g) Evidence
(h) Imigration law and Nationality law (i) Social security (j) Family Law

35
 CHAPTER - III
INTERNATIONAL ORGANISATIONS

O BJECTIVE
An international organization, or more formally intergovernmental organization (IGO), is an
organization whose members are sovereign states or other IGOs (like the European Union and the
WTO). Such organizations function according to the principles of inter governmentalism, which means
that unanimity is required. The European Union is however an exception to this rule in some areas.
Non-governmental organizations (NGOs) are private organizations that can also be international
in scope. Generally and correctly used, however, the term “international organization” is reserved for
intergovernmental organizations only. It is in this sense that the term is used in the remainder of this
article
• The people of the lands all over the world.
• Shared values and principles among actors within an international system.
The international community is regulated by the international law created by the international
treaties.
INTERNATIONAL COURT OF JUSTICE
Article 38(1) is generally recognised as a definitive statement of the sources of international
law. It requires the Court to apply inter alia, (a) international conventions “expressly recognized by the
contesting states”, and (b) “international custom, as evidence of a general practice accepted as law”.
To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the general principles
applied by the Court were those that had been “the general principles of the law recognized by civilized
nations”. As it is states that by consent determine the content of international law, sub-paragraph (d)
acknowledges that the Court is entitled to refer to “judicial decisions” and juristic writings “as subsidiary
means for the determination of rules of law”.
On the question of preference between sources of international law, rules established by treaty
will take preference if such an instrument exists. It is also argued however that international treaties and
international custom are sources of international law of equal validaty; this is that new custom may
supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and
juristic writings are regarded as auxiliary sources of international, whereas it is unclear whether the
general principles of law recognized by ‘civilized nations’ should be recognized as a principal or auxiliary
source of international law.
It may be argued that the practice of international organizations, most notably that of the United
Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an
additional source of international law, even though it is not mentioned as such in Article 38(1) of the

36
1946 Statute of the International Court of Justice. It should be noted that Article 38(1) is closely based
on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice,
thus predating the role that international organizations have come to play in the international plane. That
is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the
mention made to ‘civilized nations’, a mentioning that appears all the more quaint after the decolonization
process that took place in the early 1960s and the participation of nearly all nations of the world in the
United Nations.

It is also possible, though less common, for a treaty to be modified by practices arising between
the parties to that treaty. The other situation in which a rule would take precedence over a treaty
provision would be where the rule has the special status of being part of the jus cogens.

INTERNATIONAL CUSTOM
Article 38.1(b) of the ICJ Statute refers to “international custom” as a source of international
law, specifically emphasizing the two requirements of state practice plus acceptance of the practice as
obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).

Derived from the consistent practice of (originally) Western states accompanied by opinio juris
(the conviction of States that the consistent practice is required by a legal obligation), customary
international law is differentiated from acts of comity by the presence of opinio juris (although in some
instances, acts of comity have developed into customary international law, i.e. diplomatic immunity).
Treaties have gradually displaced much customary international law. This development is similar to the
replacement of customary or common law by codified law in municipal legal settings, but customary
international law continues to play a significant role in international law.

STATE PRACTICE
When examining state practice to determine relevant rules of international law, it is necessary to
take into account every activity of the organs and officials of states that relate to that purpose. There has
been continuing debate over where a distinction should be drawn as to the weight that should be
attributed to what states do, rather than what they say represents the law. In its most extreme form, this
would involve rejecting what states say as practice and relegating it to the status of evidence of opinio
juris. A more moderate version would evaluate what a state says by reference to the occasion on which
the statement was made. It is only relatively powerful countries with extensive international contacts
and interests that have regular opportunities of contributing by deed to the practice of international law.
The principal means of contribution to state practice for the majority of states will be at meetings of
international organisations, particularly the UN General Assembly, by voting and otherwise expressing
their view on matters under consideration. Moreover, there are circumstances in which what states say
may be the only evidence of their view as to what conduct is required in a particular situation.

37
 The notion of practice establishing a customary rule implies that the practice is followed regularly,
or that such state practice must be “common, consistent and concordant”. Given the size of the
international community, the practice does not have to encompass all states or be completely uniform.
There has to be a sufficient degree of participation, especially on the part of states whose interests are
likely be most affected, and an absence of substantial dissent. There have been a number of occasions
on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in
the practice brought to its attention.

Within the context of a specific dispute, however, it is not necessary to establish the generality
of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because
the two states belong to a group of states between which the rule applies.

A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate
its persistent objection to that rule, either as a member of a regional group or by virtue of its membership
of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus
cogens have a universal character and apply to all states, irrespective of their wishes.

Demand for rules that are responsive to increasingly rapid changes has led to the suggestion
that there can be, in appropriate circumstances, such a concept as “instant custom”. Even within traditional
doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the
formation of a new rule.Because of this, the question is sometimes raised as to whether the word
“custom” is suitable to a process that could occur with great rapidity.

OPINIO JURIS
A wealth of state practice will usually carry with it a presumption that opinio juris exists. It
would then be for the state against which the rule is pleaded to rebut that presumption by demonstrating
the absence of opinio juris in the activities being relied upon by the other party.

In cases where practice (of which evidence is given) comprises abstentions from acting,
consistency of conduct might not establish the existence of a rule of customary international law. The
fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal
on the basis of a customary obligation because the necessary opinio juris was lacking.

Although the ICJ has frequently referred to opinio juris as being an equal footing with state
practice, the role of the psychological element in the creation of customary law is uncertain.

JUS COGENS
A peremptory norm or jus cogens (Latin for “compelling law” or “strong law”) is a principle of
international law considered so fundamental that it overrides all other sources of international law,
including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53
of the Vienna Convention on the Law of Treaties:

38
 For the purposes of the present Convention, a peremptory norm of general international law is
a norm accepted and recognised by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.

Rules of jus cogens generally require or forbid the state to do particular acts or respect certain
rights. However, some define criminal offences which the state must enforce against individuals. Generally
included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as
waging aggressive war, war crimes, crimes against humanity, piracy, genocide, slavery and torture.

The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that
required to establish the creation of a new rule of customary international law. Indeed, jus cogens could
be thought of as a special principle of custom with a superadded opinio juris. The European Court of
Human Rights has stressed the international public policy aspect of the jus cogens.

TREATIES AS LAW
Treaties can play the role of contracts between two or more parties, such as an extradition
treaty or a defence pact. They can also be legislation to regulate a particular aspect of international
relations, or form the constitutions of international organisations. Whether or not all treaties can be
regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a),
which uses the term “international conventions”, concentrates upon treaties as a source of contractual
obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty
to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must
either be capable of affecting non-parties or have consequences for parties more extensive than those
specifically imposed by the treaty itself.

TREATIES AS CUSTOM
Some treaties are the result of codifying existing customary law, such as laws governing the
global commons, and jus ad bellum. While the purpose is to establish a code of general application, its
effectiveness depends upon the number of states that ratify or accede to the particular convention.
Relatively few such instruments have a sufficient number of parties to be regarded as international law
in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of
War Victims.

Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance,
and are dependent upon their provisions being regarded as representing customary international law
and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:

♦ When the treaty rule reproduces an existing rule of customary law, the rule will be clarified
39
 in terms of the treaty provision. A notable example is the Vienna Convention on the Law of
Treaties 1969, which was considered by the ICJ to be law even before it had been brought
into force.
♦ When a customary rule is in the process of development, its incorporation in a multilateral
treaty may have the effect of consolidating or crystallising the law in the form of that rule. It
is not always easy to identify when this occurs. Where the practice is less developed, the
treaty provision may not be enough to crystallise the rule as part of customary international
law.
♦ Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption
However, the principles of estoppel and equity in the international context do not retain all
the connotations they do under common law. The reference to the principles as “general”
signify that, if rules were to be adapted from municipal law, they should be at a sufficient
level of generality to encompass similar rules existing in many municipal systems. Principles
of municipal law should be regarded as sources of inspiration rather than as sources of rules
of direct application.
JUDICIAL DECISIONS AND JURISTIC WRITINGS
According to Article 38(1)(d) of its Statute, the ICJ is also to apply “judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law”. It is difficult to tell what influence these materials have on the development
of the law. Pleadings in cases before the ICJ are often replete with references to case law and to legal
literature.
The decisions of international and municipal courts and the publications of academics can be
referred to, not as a source of law as such, but as a means of interpreting the law established in other
sources. In practice the International Court of Justice does not refer to domestic decisions although it
does invoke its previous case-law.
There is no rule of stare decisis in international law.
The International Court of Justice will often consider the draft Articles on international law
published by the International Law Commission as authoritative statements on international law. Often
they will consider General Assembly resolutions as indicative of customary international law.

SUMMARY
The International Court of Justice, which sits at The Hague in the Netherlands, acts as a world
court. It decides in accordance with international law disputes of a legal nature submitted to it by States,
whilst in addition certain international organs and agencies are entitled to call upon it for advisory
opinions. It was set up in 1945 under the Charter of the United Nations to be the principal judicial
organ of the Organization, and its basic instrument. The International Court of Justice is to be distinguished
from its predecessor, the Permanent Court of International Justice (1922-1946). To avoid confusion, in

40
references to cases decided by the two Courts, an asterisk has been placed before the names of cases
decided by the Permanent Court of International Justice. The abbreviations ICJ and PCIJ are used
respectively to designate the two Courts.
International courts are formed by treaties between nations, or under the authority of an
international organization such as the United Nations — this includes ad hoc tribunals and permanent
institutions, but excludes any courts arising purely under national authority. Therefore under these
circumstances the international courts receive immunities and privaleges around the world.

QUESTIONS:

1. Define International Organization?

2. Describe International Court of Justice?
3. What do you understand by International Custom and State Practice?
4. Write notes on
(a) Opinio Juris (b) Jus Cogens
(c) Treaties as Law (d) Treaties as Custom
(e) General Principles of Law
(f) Judicial Decisions and Juristic Writings?
5. Define an NGO?

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 CHAPTER - IV
INDIVIDUALS AND PRIVATE CORPORATIONS

O BJECTIVE

As commonly used, individual refers to a person or to any specific object in a collection. In the
15th century and earlier, and also today within the fields of statistics and metaphysics, individual means
“indivisible”, typically describing any numerically singular thing, but sometimes meaning “a person”.
From the seventeenth century on, individual indicates separateness, as in individualism.
The property that all individuals have in common is that they tend to change their world in order to
maintain a specific state. In an abstract sense, an individual tries to remove every factor that he dislikes
and tries to add every factor he likes. This behaviour can be summarized as a movement to a state of
happiness. This is the only common property of individuals and therefore the concept of an individual
can be defined as this movement.
Such a definition implies that an individual is not necessarily human, nor does it need to have any
form of awareness. Using this definition implies that one can recognize an individual behind every group
of more or less coherent changes in the world. For example, gravity could be the individual that tries to
put all mass together.
He who recognizes himself as an individual defined as such can see his actions as a product of his
capacities, the state of the world he acts in and himself. His knowledge, experience and possessions are
no more than a part of the world. They are created and maintained by the individual in order to efficiently
strive to the ideal state of happiness. In this sense earthly possessions and mental thoughts are just the
same kind of achievements for the individual.
CORPORATIONS LAW OR CORPORATE LAW
Corporations law or corporate law is the field of law concerning the creation and regulation of
corporations and other business organizations. A corporation is a legal entity that is legally treated, in
certain instances, as a person; the corporation can own property, execute contracts, sue, and be sued.
In British practice, corporate law is more often called company law.
Corporate law also includes the law governing the relationships among various constituents of a
corporation such as shareholders, directors and management.
Under what circumstances may a corporation engage in a transaction (such as renting property)
with a director?
CORPORATIONS
Corporations may be formed under general laws, but shall not be created by special act,
except for municipal, manufacturing, mining, immigration, industrial, and educational purposes, or for

42
constructing canals, or improving navigable rivers and harbors of this state, and in cases where, in the
judgment of the general assembly, the objects of the corporation can not be attained under general
laws. All general laws and special acts passed pursuant to this section may be altered, amended, or
repealed.

All existing charters or grants of special or exclusive privileges, under which a bona fide
organization shall not have taken place and business been commenced in good faith, at the time of the
ratification of this Constitution, shall thereafter have no validity.

The general assembly shall not remit the forfeiture of the charter of any corporation now existing,
or alter or amend the same, or pass, any general or special law for the benefit of such corporation, other
than in execution of a trust created by law or by contract, except upon the condition that such corporation
shall thereafter hold its charter subject to the provisions of this Constitution.

No foreign corporation shall do any business in this state without having at least one known
place of business and an authorized agent or agents therein; and such corporation may be sued in
any county where it does business by service of process upon an agent anywhere in this state.

No corporation shall engage in any business other than that expressly authorized in its charter.

No corporation shall issue stock or bonds except for money, labor done, or money or property
actually received; and all fictitious increase of stock or indebtedness shall be void. The stock and
bonded indebtedness of corporations shall not be increased, except in pursuance of general laws, nor
without the consent of the persons holding the larger amount in value of stock, first obtained at a
meeting to be held after thirty days’ notice given in pursuance of law.

Municipal and other corporations and individuals invested with the privilege of taking private
property for public use shall make just compensation for the property taken, injured, or destroyed by
the construction or enlargement of its works, highways, or improvements, which compensation shall be
paid before such taking, injury, or destruction. The general assembly is hereby prohibited from depriving
any person of an appeal from any preliminary assessment of damages against any such corporations or
individuals made by viewers, or otherwise; and the amount of such damages in all cases of appeal shall,
on the demand of either party, be determined by a jury according to law.

Dues from private corporations shall be secured by such means as may be prescribed by law;
but in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by
him or her.

No corporation shall issue preferred stock without the consent of the owners of two-thirds of
the stock of said corporation.

The general assembly shall have the power to alter, revoke, or amend any charter of incorporation
now existing, and revocable at the ratification of this Constitution, or any that may hereafter be created,
whenever, in their opinion, it may be injurious to the citizens of the state; in such manner, however, that

43
no injustice shall be done to the corporators. No law hereafter enacted shall create, renew, or extend
the charter of more than one corporation.

Any association or corporation organized for the purpose, or any individual, shall have the right
to construct and maintain lines of telegraph within this state, and connect the same with other lines; and
the general assembly shall, by general law of uniform operation, provide reasonable regulations to give
full effect to this section. No telegraph company shall consolidate with or hold a controlling interest in
the stock or bonds of any other telegraph company owning a competing line, or acquire, by purchase
or otherwise, any other competing line of telegraph.

All corporations shall have the right to sue, and shall be subject to be sued in all courts, in like
cases as natural persons.

The term “corporation,” as used in this article, shall be construed to include all joint stock
companies, or any associations having any of the powers or privileges of corporations, not possessed
by individuals or partnerships.

BANKS AND BANKING

The general assembly shall not have the power to establish or incorporate any bank or banking
company, or moneyed institution, for the purpose of issuing bills of credit, or bills payable to order or
bearer, except under the conditions prescribed in this Constitution.

No banks shall be established otherwise than under a general banking law, nor otherwise than
upon a specie basis.

All bills or notes issued as money shall be at all times redeemable in gold or silver, and no law
shall be passed sanctioning, directly or indirectly, the suspension by any bank or banking company of
specie payment.

Holders of bank notes and depositors who have not stipulated for interest, shall, for such notes
and deposits, be entitled, in case of insolvency, to the preference of payment over all other creditors.

Every bank or banking company shall be required to cease all banking operations within twenty
years from the time of its organization (unless the general assembly shall extend the time), and promptly
thereafter close its business; but shall have corporate capacity to sue and shall be liable to suit, until its
affairs and liabilities are fully closed.

No bank shall receive, directly or indirectly, a greater rate of interest than shall be allowed by
law to individuals for lending money.

The state shall not be a stockholder in any bank, nor shall the credit of the state ever be given
or loaned to any banking company, association, or corporation.

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RAILROADS AND CANALS
All railroads and canals shall be public highways, and all railroad and canal companies shall be
common carriers. Any association or corporation organized for the purpose shall have the right to
construct and operate a railroad between any points in this state, and to connect, at the state line, with
railroads of other states. Every railroad company shall have the right with its road to intersect, connect
with, or cross any other railroad, and shall receive and transport, each, the other’s freight, passengers,
and cars, loaded or empty, without delay or discrimination.

The general assembly shall pass laws to correct abuses and prevent unjust discrimination and
extortion in the rates of freights and passenger tariffs on railroads, canals, and rivers in this state.

No railroad or other transportation company shall grant free passes, or sell tickets or passes at
a discount other than as sold to the public generally, to any member of the general assembly, or to any
person holding office under this state or the United States.

No street passenger railway shall be constructed within the limits of any city or town without
the consent of its local authorities.

No railroad, canal, or other transportation company, in existence at the time of the ratification
of this Constitution, shall have the benefit of any future legislation by general or special laws, other than
in execution of a trust created by law, or by contract, except on the condition of complete acceptance
of ail the provisions of this article.

1) A body of persons acting under a legal charter as a separate entity with its own rights, privileges,
and liabilities distinct from those of its individual members.

2) Any group of people combined into or acting as one body.

From the Latin corpus, body, a corporation is a body of people — a collective body treated
as an entity distinct from its members. In short, a corporation is nonsense. No ‘body’ of people can act
as one, as though they were merely parts of a whole being with a mind of its own. Yet a corporation is
supposed to behave as just that, as though it exists in itself. In actuality a corporation is an invention,
acting and existing in practical terms only as the cooperation and in some cases the conflict, of individuals.
Like a nation-state, a corporation exists only through the belief of its independent existence. Corporations
are fabrications.

THE PRIVATE CORPORATIONS

The private corporation we know as a standard today did not arise from a free market of
individuals. It arose as an adaptation of business as conducted within an environment of legal interference
with free exchange. The need for the ability to raise great amounts of capital for business endeavors led
to this. The legal identity of a corporation allows large amounts of investment capital to remain associated
with a fictional corporate ‘person’ as though it were private, allowing it to largely hide from taxation

45
under that corporation, as the state pays attention to economic exchanges between legal individuals. It
is very difficult or impossible to raise and maintain comparable assets without resort to state-chartered
corporations. The corporation is a consequence of the history of legality and government, not a stage in
the natural evolution of free economic activity. To put a positive spin on that, the corporation was in part
an attempt to find financial freedom where it otherwise could not be found.
Unfortunately, corporations and government are intimately intertwined. The use of the word in
a governmental context indicates this, as does the fact that the first economic corporations were
mercantilist monopolies granted by authority of the British crown. In many ways, modern corporations
are still heavily influenced by even very old law and very old government. For example, institutional
investors have their permissible behavior influenced to short-term planning by ‘the law of trusts’ which
originates from the English ‘law of dukes.’
Corporations are often run too much like democratic states without territories. They have their
executives, who are sometimes all too much like oligarchic rulers. They have their populist leaders as
labor organizers. They have their voters, the stockholders. They exist because of belief in law, and they
are collective organizations which can eclipse individual identity, like states. Corporations fail to serve
the advantage of individual people, when they do fail, because they are businesses made of individuals,
forced into the mold of states due to their existence within states. Remember, though, where this model
came from.
A corporation is still not equivalent to a government or state. A government rules, legislates and
enforces based on the monopoly of state power. A corporation is still a form of business, and still largely
oriented around economic activity and exchange rather than control. However, economic corporations
are supported in their very existence by official law, which is supported by force. Many corporations
have also become similar to governments in being weighed down by bureaucracy. So much so, that
‘corporate’ is also now used to describe bureaucracy, unoriginality, and inertia found in business culture.
Corporations are not ‘private’ by their very definition and regulation according to public corporate
law. That interdependence guarantees that corruption will occur, as interests in the commercial sphere
influence political interests, and vice versa. We should notice that the corporate system, this corporatism,
gives the state a special kind of control over all major business endeavors. What corporations are
capable of in terms of concentrating capital can only be achieved in practice today with the legal
sanction of the state.
The chief means of a corporation raising capital is by issuing stock, granting percentage shares
in ownership of the corporation. For most practical purposes, those shares are not really percentages
in the company. Owning 5000 shares from 100 million does not mean that a given shareholder is
entitled to make any decision for any part of the corporation, or to cart away and sell 1/20000 of its
assets. Nor does a much larger amount. This share system is a legal fiction. What really occurs is that
the people who manage the affairs of the corporation and work within it are being loaned money for
operations and expansion, in the hope that the corporation will make money. This will be repaid according

46
to relative success or failure in business as it influences the perception of stock value, down to and
including no repayment if the corporation collapses. The fiction that the ownership of the corporation
exists in its shares allows corporations to raise vast amounts of capital, but there are problems with this
device.
The most important and most famous problem is accountability. One of the excellent benefits of
private property is personal responsibility. At least one person must own a company in Promethean
capitalism in the sense that they are responsible for it, as well as profiting from its success. That is only
the logical extension of private ownership in an individual free market. A corporation is a departure
from this. There is limited personal liability for corporations. (A fact which often induces small business
with no need of public stockholder capital to incorporate for protection from excessive and frivolous
legal action.) In a large corporation, in many cases there is truly no one ultimately ‘at the helm.’
This drawback of economic corporations lies with the governmental support (and in fact, legal
enforcement) of their artificial internal structures, in which management — leadership — is largely
divorced from both accountability and in many cases, from actual individual measures of profit and
benefit, a situation exacerbated by size. This lack of accountability is similar in many ways to that of
agents of government, for the same reason. Both executives and stockholders of a corporation, and
government employees, are largely irresponsible because the imaginary collective is directly associated
with their actions. When they act, the ‘corporation’ or ‘government’ is said to act. The reason why
executive perks far in excess of executive performance tend to materialize is the same reason why
legislative perks tend to materialize, or pork-barrel content in bills becomes law — accountability is
removed from influential decisions. In theory perhaps, public corporations are responsible to their
stockholders just as private companies are to their owners. But the link is an indirect one, as with
government. One or a small number of stockholders, like a small number of voters, do not tend to
matter. The proxy voting system has further exaggerated the distance between stockholders and decision-
making, just as representation does in a democracy. (This is not to say that decision by direct majority
would function much better in this case than it did in the demagogic pure democracy of Athens — not
when the voters do not have both the personal interest and the responsibility of direct ownership.)
The ability of corporate stock to raise capital is only a necessary advantage to the advancement
and capabilities of a given corporation, not necessarily to any individual. Raising capital allows for
expansion of a corporation, not necessarily greater profits for stockholders, greater benefits for customers,
or higher pay or better conditions for employees. It is unclear how the corporation can be said to be an
instrument of a free market, and voluntary exchange for mutual profit, since it is an imaginary entity in
any agreement. Agreements made by a corporation may favor a corporation — but what exactly does
that mean? It may mean that a corporation becomes more expansive. It may mean likely advantages
and profit for people as with a free market, or it may not. Transactions in a free market are based on a
personal and subjective determination of value — but a corporation is not a person. The more indirect
and nebulous a corporation’s interests as they are actually derived and acted out through the interests of
actual people, the less a corporation is representative of a free market, and likely to achieve mutual

47
benefit. Corporations may ‘agree,’ through their executive decisions, that cartel price fixing to decrease
competition between them (in order to undercut other competition or maintain ‘stability’) is in the
corporate interest. They may decide that influencing political processes is in the interest of the corporation.
And corporations have, historically, ignored the terrible conditions of their workers too often, as labor
leaders have claimed. That is tied to thinking of workers as part of a corporation, who serve the
interests of the corporate body, rather than as independents who are pursuing their own interests as
they exchange the valuable capital of labor. The tendency of labor organizations to consider labor as a
mass, however, is no real remedy for this collectivism.

COMPANY
A company, on the other hand, is a word and a concept which describes a group sharing
companionship and relationship in some way — a reality. A real ‘company’ in an economic sense (sole
proprietorship or partnership) is a cooperative endeavor between individuals. This kind of organization,
whether founded on solitary ownership and employment, or mutual ownership and decision by a group
of individuals, as with a partnership or the extended ‘family’ of a kibbutz, can be fully compatible with
the individual and voluntary nature of Promethean capitalism. A company can exist as a group of individuals
with direct and personal relationships to ownership and decision in both profit and responsibility, with
clear exchanges for mutual benefit between individuals within the company, as well as a cooperative
focus among them.

It must be stressed that there are many corporations whose executives consider themselves
responsible for what they do, and that many stockholders consider themselves responsible. Many
corporations prosper exclusively, or almost exclusively, by providing superior goods and services which
are a boon to customers and by treating employees with respect, without and often in rejection of
potential advantages which might be derived from fascist collusion. The benefits of corporations tend to
follow the extent to which they act as companies, not the extent to which they are akin to governments.

The best corporations are usually those who are not run primarily by committee and group
bureaucracy, as governments are. They are those run primarily by one person or a small number, and
even associated in public with one responsible person. There is both clear leadership of the direction of
such a corporation, and a face behind it. In this case the corporation is less the product of ‘corporate’
thinking than individual thinking. As with many things, from artistic creation to politics, supposed ‘collective’
achievement in management becomes in practice inactivity, cowardly indecision, or decision-making
which is poor because of a lack of personal vision.

That many corporations function as companies, that is as cooperative endeavors between

individuals as though they did exist within a free market, is a credit to those responsible. We should
realize, however, that such corporations do not depend on the corporate system to function in this way,
and rather, do so in spite of it. Those who would found, maintain, and support this kind of success
within a corporation within a larger fascism, would do so just as easily in the competition of a free
market. In fact, they would likely experience much greater success and less hindrance. These people

48
have nothing to fear from a free market’s competition, or from the abolition of corporate law. Those
who would exploit fascistic corporatism, however, will continue to support the way things are. They
cannot earn the same position without the advantages of legal compulsion to reinforce undeserved
monopolies, and without imaginary legal identity.

Many objections to corporations relate to size. Most sensible objections to ‘big corporations’
actually have to do with their facelessness and lack of accountability as discussed above, or with
exploitation, oppression, and trickery used to become that size. Would the same problems of unscrupulous
practices be likely to occur in a free market composed of independent individuals, and truly private
companies (and other cooperative groups)?

The ability to compete includes convincing consumers to look favorably upon a company.
Because buying is still a choice, even if the existing corporate system is not a product of free economic
choices, corporations are in practical terms often more responsible to the customer than they are to
their ‘owners,’ the shareholders. This link between corporate profit and voluntary exchange can often
hold corporate misdeeds in check, whether in organized boycotts and campaigns, or in the sum of
individual reactions. But this is offset by the sheer size of large corporations. Corporate law gives an
advantage to size, regardless of competitive advantage. Corporations manage regulations, taxes, and
lawsuits with relative ease.

A company which attains the size of a major corporation in a free market, with full competition
and accountability, is exceedingly unlikely to have obtained its position through exploitation. There are
simply too many opportunities to expose such a company when it has no opportunity for collusion with
government and ruin its reputation, or to compete with it in prices, wages, or treatment before it reaches
a great size. Private ownership also tends to ensure that companies will remain smaller in general due to
competition.

One of the great strengths of capitalism is competition. The greatest personal advantage of this
is possibly not that services and goods must improve and prices must drop in order to attract consumers.
These are simply the most common and widespread advantages. It is more important that capitalism
involves a peaceful contest for gain by trade, which like athletic contests among warrior societies offers
a means besides war to provoke one another to excellence. The expenditure of energy in such a contest
can be satisfying, strengthening, and even ennobling, even to those who are not the most successful of
all. That very human, very intimate advantage for the capitalist is lessened considerably under corporatism,
first when the personal face of one’s peer and good-natured contestant is instead a more faceless
organization, and second when corporate stability is sought and maintained, and competition is often
feared. In consideration of the human nature involved, individualistic ownership is essential in order to
gain both the personal and the common fruit of competition.

To criticize corporations in the modern sense is not necessarily to criticize capitalism. Indeed,
Promethean capitalism necessitates having no corporations in the legal sense or the collective sense.

49
We might say that the corporation really belongs to the socioeconomic circumstance of the state, as
part of the state — a socialist container for common ownership, and a fascist instrument of control and
collusion between business and government. It was not for nothing that Mussolini said “fascism is
corporatism.”

Corporations are myths which have arisen as a consequence of legality and government,
perpetuated by legal force, a province of government. This realization is important because it illuminates
for critics of capitalism the problems associated with the system of incorporated business which is
called ‘capitalism,’ but does not actually belong to a free-market of individuals. For free-market
advocates, this realization can help to show why they must not defend the corporate system itself as
they would defend free-market capitalism and its benefits. To do so is to defend a corruption of free
enterprise.

Corporations are also unnecessary within free markets. The corporate advantage of raising
capital safe from interference is a meaningless one within a free market not dominated by the state. Any
voluntary grouping of capital, including cooperative efforts between companies of people, is free to
form in Promethean capitalism, instead of the capital of large corporations. The human and personal
benefits associated with corporations need not be products of the current system of corporate entities,
and they will be augmented in the absence of the corporation as it exists today. The worst problems
commonly associated with capitalism may likewise be left behind with the corporation and the state.

There are solid reasons for objecting to corporatism, and for objecting to many actions taken
by those within certain corporations. But those who would attack corporations directly, especially
using the legal system to build more regulation within corporate law, have it wrong. They are merely
compounding the centralized concentration of the state. Getting beyond corporations is part of getting
beyond law. With the absence of government comes the elimination of the legal system, which is all that
supports the existence of the collective entities known as corporations, and is the reason for their
evolution in the first place. In a Promethean society corporations will not exist.

SUMMARY
Corporate law also sometimes includes securities laws, which govern the conditions under
which corporations can issue shares and is aimed at preventing fraudulent offering schemes.

Corporate law is generally considered to be distinct from the fields of law that are principally
concerned with the relationship between a corporation and a third party, such as commercial law,
antitrust law, and environmental law.
A corporation is a legal entity which, while being owned collectively by a number of natural
persons or other legal entities, can exist completely separately from them. This separation gives the
corporation unique powers which other legal entities lack. The extent and scope of its status and
capacity is determined by the law of the place of incorporation.

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 Investors and entrepreneurs often form joint stock companies and incorporate them to facilitate
a business; as this form of business is now extremely prevalent, the term corporation is often used to
refer specifically to such business corporations. Corporations may also be formed for local government
(municipal corporation), political, religious, and charitable purposes (not-for-profit corporation), or
government programs (government-owned corporation).

QUESTIONS:
1. Define an Individual?

2. What are Corporation law, Corporate Law, Company law?

3. Under which law a Corporation is formed?

What are the general charters of a Corporation?

4. What are the powers bestowed by the general assembly on Banks and Banking?

5. What is a Corporation?

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 CHAPTER - V
T R E AT I E S

O BJECTIVE
A treaty is a binding agreement under international law entered into by actors in international
law, namely states and international organizations. Treaties are called by several names: treaties,
international agreements, protocols, covenants, conventions, exchanges of letters, exchanges of notes,
etc. Regardless of the name chosen, all of these international agreements under international law are
equally treaties and the rules are the same. However, under United States constitutional law, only a
treaty that has achieved advice and consent of two-thirds of the Senate present is properly designated
as a “treaty.” If, instead, the President presents a negotiated instrument to the whole Congress for
majority approval, the agreement is typically called a congressional-executive agreement.” For example,
the North American Free Trade Agreement (NAFTA) and most other U.S. trade agreements are
executive agreements.

Treaties can be loosely compared to contracts: both are means of willing parties assuming
obligations among themselves, and a party to either that fails to live up to their obligations can be held
liable under international law for that breach. The central principle of treaty law is expressed in the
maxim pacta sunt servanda—”pacts must be respected.” However, in the United States, treaties are
equal in stature to legislation. Because of this rule, treaties and statutes can override each other—
whichever is latest in time is controlling.

BILATERAL AND MULTILATERAL TREATIES

A multilateral treaty has several parties, and establishes rights and obligations between each
party and every other party. Multilateral treaties are often, but not always, open to any state; others are
regional.

Bilateral treaties by contrast are negotiated between a limited number of states, most commonly
only two, establishing legal rights and obligations between those two states only. It is possible however
for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between
Switzerland and the European Union (EU) following the Swiss rejection of the European Economic
Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not
multilateral, treaties. The parties are divided into two groups, the Swiss (“on the one part”) and the EU
and its member states (“on the other part”). The treaty establishes rights and obligations between the
Swiss and the EU and the member states severally; it does not establish any rights and obligations
amongst the EU and its member states.

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ADDING AND AMENDMENT TREATY OBLIGA
TREATY TIONS
OBLIGATIONS

RESERVATIONS
Reservations are essentially caveats to a state’s acceptance of a treaty. Reservations are a
unilateral statement purporting to exclude or to modify the legal obligation and its effects on the reserving
state. These must be included at the time of signing or ratification—a party cannot add a reservation
after it has already joined a treaty.

Originally, international law was unaccepting of treaty reservations, rejecting them unless all
parties to the treaty accepted the same reservations. However, in the interest of encouraging the largest
numbers of states to join treaties, a more permissive rule regarding reservations have emerged. While
some treaties still expressly forbid any reservations, they are now generally permitted to the extent that
they are not inconsistent with the goals and purposes of the treaty.

When a state limits its treaty obligations through reservations, other states party to that treaty
have the option to accept those reservations, object to them, or object and oppose them. If the state
accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the
reserved legal obligation as concerns their legal obligations to each other (accepting the reservation
does not change the accepting state’s legal obligations as concerns other parties to the treaty). If the
state opposes, the parts of the treaty affected by the reservation drop out completely and no longer
create any legal obligations on the reserving and accepting state, again only as concerns each other.
And finally, if the state objects and opposes, there are no legal obligations under that treaty between
those two state parties whatsoever. The objecting and opposing state essentially refuses to acknowledge
the reserving state is a party to the treaty at all.

AMENDMENTS
There are three ways an existing treaty can be amended. First, formal amendment requires
States parties to the treaty to go through the ratification process all over again. The re-negotiation of
treaty provisions can be long and protracted, and often some parties to the original treaty will not
become parties to the amended treaty. When determining the legal obligations of states, one party to
the original treaty and one a party to the amended treaty, the states will only be bound by the terms they
both agreed upon. Treaties can also be amended informally by the treaty executive council when the
changes are only procedural, technical, or administrative (not principled changes). And finally, a change
in customary international law (state behavior) can also amend a treaty, where state behavior evinces a
new interpretation of the legal obligations under the treaty.

PROTOCOLS
In international law and international relations, a protocol is a treaty or international agreement
that supplements a previous treaty or international agreement. A protocol can amend the previous
treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the

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protocol; sometimes this is made clearer by calling it an “optional protocol”, especially where many
parties to the first agreement do not support the protocol.

Some examples: the United Nations Framework Convention on Climate Change (UNFCCC)
established a framework for the development of binding greenhouse gas emission limits, while the
Kyoto Protocol contained the specific provisions and regulations later agreed upon.

EXECUTION AND IMPLEMENTATION

Treaties may be seen as ‘self-executing’, in that merely becoming a party puts the treaty and all
of its obligations in action. Other treaties may be non-self-executing and require ‘implementing
legislation’—a change in the domestic law of a state party that will direct or enable it to fulfill treaty
obligations. An example of a treaty requiring such legislation would be one mandating local prosecution
by a party for particular crimes.

The division between the two is often not clear and is often politicized in disagreements within
a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper
change in domestic law. If a treaty requires implementing legislation, a state may be in default of its
obligations by the failure of its legislature to pass the necessary domestic laws.

INTERPRETATION
The language of treaties, like that of any law or contract, must be interpreted when the wording
does not seem clear or it is not immediately apparent how it should be applied in a perhaps unforeseen
circumstance. The Vienna Convention states that treaties are to be interpreted “in good faith” according
to the “ordinary meaning given to the terms of the treaty in their context and in the light of its object and
purpose.” International legal experts also often invoke the ‘principle of maximum effectiveness,’ which
interprets treaty language as having the fullest force and effect possible to establish obligations between
the parties.

No one party to a treaty can impose its particular interpretation of the treaty upon the other
parties. Consent may be implied, however, if the other parties fail to explicitly disavow that initially
unilateral interpretation, particularly if that state has acted upon its view of the treaty without complaint.
Consent by all parties to the treaty to a particular interpretation has the legal effect of adding an additional
clause to the treaty—this is commonly called an ‘authentic interpretation.’

International tribunals and arbiters are often called upon to resolve substantial disputes over
treaty interpretations. To establish the meaning in context, these judicial bodies may review the preparatory
work from the negotiation and drafting of the treaty as well as the final, signed treaty itself.

CONSEQUENCES OF TERMINOLOGY
One significant part of treaty making is that signing a treaty implies recognition that the other
side is a sovereign state and that the agreement being considered is enforceable under international law.
Hence, nations can be very careful about terming an agreement to be a treaty. For example, within the

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United States agreements between states are compacts and agreements between states and the federal
government or between agencies of the government are memoranda of understanding. Conversely,
perhaps the most significant thing about the was that it was explicitly a treaty and hence implied British
recognition of Irish sovereignty.

Another situation can occur when one party wishes to create an obligation under international
law, but the other party does not. Such as the case with the Sino-British Joint Declaration signed
between the United Kingdom and the People’s Republic of China in 1984. The wording for the document
was very carefully designed to make it possible to interpret it either as a treaty or as a communique.
Similar factors have been at work with respect to discussions between North Korea and the United
States over security guarantees and nuclear proliferation.

The terminology can also be confusing because a treaty may and usually is named something
other than a treaty, such as a convention, protocol, or simply agreement. Conversely some legal
documents such as the Treaty of Waitangi are internationally considered to be documents under domestic
law.
ENDING TREATY OBLIGA
TREATY TIONS
OBLIGATIONS

WITHDRAWAL
Treaties are not necessarily permanently binding upon the signatory parties. As obligations in
international law are traditionally viewed as arising only from the consent of states, many treaties expressly
allow a state to withdraw as long as it follows certain procedures of notification. Many treaties expressly
forbid withdrawal. Other treaties are silent on the issue, and so if a state attempts withdrawal through its
own unilateral denunciation of the treaty, a determination must be made regarding whether permitting
withdrawal is contrary to the original intent of the parties or to the nature of the treaty. Human rights
treaties, for example, are generally interpreted to exclude the possibility of withdrawal, because of the
importance and permanence of the obligations. If a state party’s withdrawal is successful, its obligations
under that treaty are considered terminated, and withdrawal by one party from a bilateral treaty of
course terminates the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still
otherwise remain in force between the other parties, unless, of course, otherwise should or could be
interpreted as agreed upon between the remaining states parties to the treaty.

SUSPENSION AND TERMINATION

If a party has materially violated, or breached, its treaty obligations, the other parties may
invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty.
A material breach may also be invoked as grounds for permanently terminating the treaty itself.

A treaty breach does not automatically suspend or terminate treaty relations, however. The
issue must be presented to an international tribunal or arbiter (usually specified in the treaty itself) to
legally establish that a sufficiently serious breach has in fact occurred. Otherwise, a party that prematurely
and perhaps wrongfully suspends or terminates its own obligations due to an alleged breach itself runs

55
the risk of being held liable for breach. Additionally, parties may choose to overlook treaty breaches
while still maintaining their own obligations towards the party in breach.

Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically
terminated if certain defined conditions are met. Some treaties are intended by the parties to be only
temporarily binding and are set to expire on a given date. Other treaties may terminate if a defined event
occurs if the treaty is meant to exist only under certain conditions or in the absence thereof.

A party may claim that a treaty should be terminated, even absent an express provision, if there
has been a fundamental change in circumstances. Such a change is sufficient if it was unforeseen, if it
undermined the “essential basis” of consent by a party, if it radically transforms the extent of obligations
between the parties, and if the obligations are still to be performed. A party cannot base this claim on
change brought about by its own breach of the treaty. This claim also cannot be used to invalidate
treaties that established or redrew political boundaries.

INVALID TREATIES
There are several reasons an otherwise valid and agreed upon treaty may be rejected as a
binding international agreement, most of which involve errors at the formation of the treaty.

ULTRA VIRES TREATIES

A party’s consent to a treaty is invalid if it was given by an agent or body without power to do
so under that state’s domestic law. States are reluctant to inquire into the internal affairs and processes
of other states, and so a “manifest” violation is required such that it would be “objectively evident to any
State dealing with the matter”. A strong presumption exists internationally that a head of state has acted
within his proper authority. It seems that no treaty has ever actually been invalidated on this provision.

Consent is also invalid if it is given by a representative who ignored restrictions he is subject to

by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions
prior to his signing.

MISUNDERSTANDING,FRAUD, CORRUPTION, COERCION

Articles 46-53 of the Vienna Convention set out the only ways that treaties can be invalidated—
considered unenforceable and void under international law. A treaty will be invalidated due to either the
circumstances by which a state party joined the treaty, or due to the content of the treaty itself. Invalidation
is separate from withdrawal, suspension, or termination (addressed below), which all involve an alteration
in the consent of the parties of a previously valid treaty rather than the invalidation of that consent in the
first place.

A state’s consent may be invalidated if there was an erroneous understanding of a fact or

situation at the time of conclusion, which formed the “essential basis” of the state’s consent. Consent
will not be invalidated if the misunderstanding was due to the state’s own conduct, or if the truth should
have been evident.
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 Consent will also be invalidated if it was induced by the fraudulent conduct of another party, or
by the direct or indirect “corruption” of its representative by another party to the treaty. Coercion of
either a representative, or the state itself through the threat or use of force, if used to obtain the consent
of that state to a treaty, will invalidate that consent.

PEREMPTORY NORMS
A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other
principles of customary law, are recognized as permitting no violations and so cannot be altered through
treaty obligations. These are limited to such universally accepted prohibitions as those against genocide,
slavery, torture, and piracy, meaning that no state can legally assume an obligation to commit or permit
such acts.

ROLE OF THE UNITED NATIONS

The United Nations Charter states that treaties must be registered with the UN to be invoked
before it or enforced in its judiciary organ, the International Court of Justice. This was done to prevent
the proliferation of secret treaties that occurred in the 19th and 20th century. The Charter also states
that its members’ obligations under it outweigh any competing obligations under other treaties.

In function and effectiveness, the UN has been compared to the pre-Constitutional United
States Federal government by some, giving a comparison between modern treaty law and the historical
Articles of Confederation.

UNITED STATES LAW

In the United States, the term “treaty” is used in a more restricted legal sense than in international
law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional-executive
agreements, and sole executive agreements. All four classes are equally treaties under international law;
they are distinct only from the perspective of internal American law. The distinctions are primarily
concerning their method of ratification. Where treaties require advice and consent by 2/3rds of the
Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant
the President the authority to fill in the gaps with executive agreements, rather than additional treaties or
protocols. And finally, Congressional executive agreements require majority approval by both the House
and the Senate, either before or after the treaty is signed by the President. Currently, international
agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the
relative ease of executive agreements, the President still often chooses to pursue the formal treaty
process over an executive agreement in order to gain Congressional support on matters that require the
Congress to pass implementing legislation or appropriate funds, and those agreements that impose
long-term, complex legal obligations on the U.S.

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TREATIES AND INDIGENOUS PEOPLES
Treaties formed an important part of European colonization and, in many parts of the world,
Europeans attempted to legitimize their sovereignty by signing treaties with indigenous peoples. In most
cases these treaties were in extremely disadvantageous terms to the native people, who often did not
appreciate the implications of what they were signing.

In some rare cases, such as with Ethiopia and Qing Dynasty China, the local governments were
able to use the treaties to at least mitigate the impact of European colonization. This involved learning
the intricacies of European diplomatic customs and then using the treaties to prevent a power from
overstepping their agreement or by playing different powers against each other.

In other cases, such as New Zealand and Canada, treaties allowed native peoples to maintain
a minimum amount of autonomy. In the case of indigenous Australians, unlike with the Mâori of New
Zealand, no treaty was ever entered into with the indigenous peoples entitling the Europeans to land
ownership. Such treaties between colonizers and indigenous peoples are an important part of political
discourse in the late 20th and early 21st century, the treaties being discussed have international standing
as has been stated in a treaty study by the UN.

SUMMARY
A state is a set of institutions that possess the authority to make the rules that govern the people
in one or more societies, having internal and external sovereignty over a definite territory. The state
includes such institutions as the armed forces, civil service or state bureaucracy, courts, and police. By
Max Weber’s influential definition, a state has a “monopoly on the legitimate use of physical force within
a given territory.”

By modern practice and law of international relations, a state’s sovereignty is not conditional
upon the diplomatic recognition of the state’s claim to independence by other states. However the
capacity of a state to enter into various international relations and treaties is conditional upon such
recognition. Degrees of recognition and sovereignty may vary. However any degree of recognition,
even the majority recognition, is not binding on third-party states.

Although the term often refers broadly to all institutions of government or rule—ancient and
modern—the modern state system bears a number of characteristics that were first consolidated in
western Europe, beginning in earnest in the 15th century.

In the late 20th century, the globalization of the world economy, the mobility of people and
capital, and the rise of many international institutions all combined to circumscribe the freedom of action
of states. However, the state remains the basic political unit of the world, as it has been since the 16th
century. The state is therefore considered the most central concept in the study of politics, and its
definition is the subject of intense scholarly debate. Political sociologists in the traditions of Karl Marx
and Max Weber usually favor a broad definition that draws attention to the role of coercive apparatus.

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 Since the late 19th century, the entirety of the world’s inhabitable land has been parceled up
into states; earlier, quite large land areas had been either unclaimed or uninhabited, or inhabited by
nomadic peoples who were not organized as states. Currently more than 200 states comprise the
international community, with the vast majority of them represented in the United Nations.

Within a federal system, the term state also refers to political units, not sovereign themselves,
but subject to the authority of the larger state, or federal union, such as the “states and territories of
Australia” and the “states” in the United States.

In casual usage, the terms “country,” “nation,” and “state” are often used as if they were
synonymous; but in a more strict usage they are distinguished:
• Country is the geographical area
• Nation designates a people, however national and international both confusingly refer as
well to matters pertaining to what are strictly states, as in national capital, international law
• State refers to set of governing institutions with sovereignty over a definite territory
An international organization, or more formally intergovernmental organization (IGO), is an
organization, such as the European Community or the WTO, with sovereign states or other IGOs as
members. Such organizations function according to the principles of intergovernmentalism, which means
that unanimity is required. The European Union is however an exception to this rule in some areas.

Non-governmental organizations (NGOs) are private organizations that can also be international
in scope. Generally and correctly used, however, the term “international organization” is reserved for
intergovernmental organizations only. It is in this sense that the term is used in the remainder of this
article.

Legally speaking, an international organization must be established by a treaty providing it with

legal recognition. International organizations so established are subjects of international law, capable of
entering into agreements among themselves or with states. Thus international organizations in a legal
sense are distinguished from mere groupings of states, such as the G-8 and the G-77, neither of which
have been founded by treaty, though in non-legal contexts these are sometimes referred to as international
organizations as well.

International organizations must also be distinguished from treaties; while all international
organizations are founded on a treaty, many treaties (e.g., the North American Free Trade Agreement
(NAFTA)) do not establish an international organization and rely purely on the parties for their
administration.

International organizations differ in function, membership and membership criteria. Membership

of some organizations (global organizations) is open to all the nations of the world. This category
includes the United Nations and its specialized agencies and the World Trade Organization. Other

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organizations are only open to members from a particular region or continent of the world, like European
Union, African Union, ASEAN and so on.

QUESTIONS:
1. Define a Treaty?
2. What are bilateral and multilateral treaties?
3. Describe adding and amendment treaty obligations?
4. Write notes on
(a) Protocols (b) Reservations
(c) Execution and Implementations (d) Interpretation
(e) Withdrawal
5. Explain ending treaty obligations?

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 CHAPTER - VI
INTERNATIONAL HUMAN RIGHTS LAW

O BJECTIVE
Human rights are international norms that help to protect all people everywhere from severe
political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right
to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political
activity. These rights exist in morality and in law at the national and international levels. They are addressed
primarily to governments, requiring compliance and enforcement. The main sources of the contemporary
conception of human rights are the Universal Declaration of Human Rights (United Nations, 1948b)
and the many human rights documents and treaties that followed in international organizations such as
the United Nations, the Council of Europe, the Organization of American States, and the African Union.

The philosophy of human rights addresses questions about the existence, content, nature,
universality, justification, and legal status of human rights. The strong claims made on behalf of human
rights (for example, that they are universal, or that they exist independently of legal enactment as justified
moral norms) frequently provoke skeptical doubts and countering philosophical defences. Reflection
on these doubts and the responses that can be made to them has become a sub-field of political and
legal philosophy with a substantial literature.

This entry includes a lengthy final section, International Human Rights Law and Organizations,
that offers a comprehensive survey of the international system for the promotion and protection of
human rights.

1. THE GENERAL IDEA OF HUMAN RIGHTS

The Universal Declaration of Human Rights (1948) sets out a list of over two dozen specific
human rights that countries should respect and protect. These specific rights can be divided into six or
more families: security rights that protect people against crimes such as murder, massacre, torture, and
rape; due process rights that protect against abuses of the legal system such as imprisonment without
trial, secret trials, and excessive punishments; liberty rights that protect freedoms in areas such as belief,
expression, association, assembly, and movement; political rights that protect the liberty to participate
in politics through actions such as communicating, assembling, protesting, voting, and serving in public
office; equality rights that guarantee equal citizenship, equality before the law, and nondiscrimination;
and social (or “welfare”) rights that require provision of education to all children and protections against
severe poverty and starvation. Another family that might be included is group rights. The Universal
Declaration does not include group rights, but subsequent treaties do. Group rights include protections
of ethnic groups against genocide and the ownership by countries of their national territories and resources
(see Anaya 2004, Baker 2004, Henrard 2000, and Kymlicka 1989).

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 In this section I try to explain the general idea of human rights by setting out some defining
features. The goal here is to answer the question of what human rights are with a general description of
the concept rather than a list of specific rights. Two people can have the same general idea of human
rights even though they disagree about whether some particular rights are human rights.

Human rights are political norms dealing mainly with how people should be treated by their
governments and institutions. They are not ordinary moral norms applying mainly to interpersonal conduct
(such as prohibitions of lying and violence). As Thomas Pogge puts it, “to engage human rights, conduct
must be in some sense official” (Pogge 2000, 47). But we must be careful here since some rights, such
as rights against racial and sexual discrimination are primarily concerned to regulate private behavior
(Okin 1998). Still, governments are directed in two ways by rights against discrimination. They forbid
governments to discriminate in their actions and policies, and they impose duties on governments to
prohibit and discourage both private and public forms of discrimination.

Second, human rights exist as moral and/or legal rights. A human right can exist as a shared
norm of actual human moralities, as a justified moral norm supported by strong reasons, as a legal right
at the national level (here it might be referred to as a “civil” or “constitutional” right), or as a legal right
within international law. The aspiration of the human rights movement is that human rights will come to
exist in all four ways.

Third, human rights are numerous (several dozen) rather than few. John Locke’s rights to life,
liberty, and property were few and abstract (Locke 1689), but human rights as we know them today
address specific problems (e.g., guaranteeing fair trials, ending slavery, ensuring the availability of
education, preventing genocide.) They are the rights of the lawyers rather than the abstract rights of the
philosophers. Human rights protect people against familiar abuses of people’s dignity and fundamental
interests. Because many human rights deal with contemporary problems and institutions they are not
transhistorical. One could formulate human rights abstractly or conditionally to make them transhistorical,
but the fact remains that the formulations in contemporary human rights documents are neither abstract
nor conditional. They presuppose criminal trials, governments funded by income taxes, and formal
systems of education.

Fourth, human rights are minimal standards. They are concerned with avoiding the terrible
rather than with achieving the best. Their focus is protecting minimally good lives for all people (Nickel
2006). Henry Shue suggests that human rights concern the “lower limits on tolerable human conduct”
rather than “great aspirations and exalted ideals” (Shue 1996). As minimal standards they leave most
legal and policy matters open to democratic decision-making at the national and local levels. This
allows them to accommodate a great deal of cultural and institutional variation and to leave a large
space for democratic decisionmaking at the national level.

Fifth, human rights are international norms covering all countries and all people living today.
International law plays a crucial role in giving human rights global reach. We can say that human rights
are universal provided that we recognize that some rights, such as the right to vote, are held only by

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adult citizens; that some human rights documents focus on vulnerable groups such as children, women,
and indigenous peoples; and that some rights, such as the right against genocide, are group rights.

Sixth, human rights are high-priority norms. Maurice Cranston held that human rights are matters
of “paramount importance” and their violation “a grave affront to justice” (Cranston 1967). This does
not mean, however, that we should take human rights to be absolute. As James Griffin says, human
rights should be understood as “resistant to trade-offs, but not too resistant” (Griffin 2001b). The high
priority of human rights needs support from a plausible connection with fundamental human interests or
powerful normative considerations.

Seventh, human rights require robust justifications that apply everywhere and support their high
priority. Without this they cannot withstand cultural diversity and national sovereignty. Robust justifications
are powerful but need not be understood as ones that are irresistible.

Eighth, human rights are rights, but not necessarily in a strict sense. As rights they have several
features. One is that they have rightholders — a person or agency having a particular right. Broadly, the
rightholders of human rights are all people living today. More precisely, they are sometimes all people,
sometimes all citizens of countries, sometimes all members of groups with particular vulnerabilities
(women, children, racial and religious minorities, indigenous peoples), and sometimes all ethnic groups
(as with rights against genocide.) Another feature of rights is that they focus on a freedom, protection,
status, or benefit for the rightholders (Brandt 1983, 44). When we talk about a right to freedom of
speech, for example, the focus is on a generally beneficial freedom that the rightholders are to have
available.

Rights also have addressees who are assigned duties or responsibilities. A person’s human
rights are not primarily rights against the United Nations or other international bodies; they primarily
impose obligations on the government of the country in which the person resides or is located. The
human rights of citizens of Belgium are mainly addressed to the Belgian government. International
agencies, and the governments of countries other than one’s own, are secondary or “backup” addressees.
International human rights organizations provide encouragement, assistance, and sometimes criticism to
states in order to assist them in fulfilling their duties. The duties associated with human rights typically
require actions involving respect, protection, facilitation, and provision. Finally, rights are usually mandatory
in the sense of imposing duties on their addressees, but they sometimes do little more than declare high-
priority goals and assign responsibility for their progressive realization. It is possible to argue, of course,
that goal-like rights are not real rights, but it may be better simply to recognize that they comprise a
weaker notion of a right.

Having set out a general idea of human rights with eight elements, it is useful to consider three
other candidates which I think should be rejected. The first is the claim that all human rights are negative
rights, in the sense that they only require governments to refrain from doing things. On this view, human
rights never require governments to take positive steps such as protecting and providing. To refute this
claim we do not need to appeal to social rights that require the provision of things like education and

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medical care. It is enough to note that this view is incompatible with the attractive position that one of
the main jobs of governments is to protect people’s rights by creating a system of criminal law and of
legal property rights. The European Convention on Human Rights (Council of Europe 1950) incorporates
this view when it says that “Everyone’s right to life shall be protected by law” (article 2.1). And the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United
Nations 1984) imposes the requirement that “Each State Party shall ensure that all acts of torture are
offences under its criminal law” (article 4.1). Providing protections is providing services, not merely
refraining

A second claim to be rejected is that all human rights are inalienable. Inalienability does not
mean that rights are absolute or can never be overridden by other considerations. To say that a right is
inalienable means that its holder cannot lose it temporarily or permanently by bad conduct or by voluntarily
giving it up. I doubt that all human rights are inalienable in this sense. If we believe in imprisonment for
serious crimes, then people’s rights to freedom of movement can be forfeited temporarily or permanently
by just convictions of serious crimes. And the right to freedom of movement can be voluntarily alienated
by a person who makes a lifelong commitment to live in a monastery. Human rights are not inalienable
but they are hard to lose.

The Law of Peoples that human rights define where legitimate toleration of other countries
ends. Rawls says that human rights “specify limits to a regime’s internal autonomy” and that “their
fulfillment is sufficient to exclude justified and forceful intervention by other peoples, for example, by
diplomatic and economic sanctions, or in grave cases by military force” (Rawls 1999, 79-80).

It is a grave oversimplification to suggest that there is a line defined by human rights where
national sovereignty ends. There is no need to deny that human rights are helpful in identifying the limits
of justifiable toleration, but there are several reasons to doubt that they simply define that boundary.
First, the “fulfillment” of human rights is a very vague idea. No country fully satisfies human rights; all
countries have significant human rights problems. Some countries have large human rights problems,
and many have massive problems (“gross violations of human rights”). Beyond this, the responsibility of
the current government of a country for these problems also varies. The main responsibility may belong
to the previous government and the current government may be taking reasonable steps to move towards
greater compliance.

Further, defining human rights as norms that set the bounds of toleration requires restricting
human rights to only a few fundamental rights. Rawls suggests the following list: “the right to life (to the
means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation,
and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to
property (personal property); and to formal equality as pressed by the rules of natural justice (that is,
that similar cases be treated similarly)” (Rawls 1999, 65). As Rawls recognizes this list leaves out most
freedoms, rights of political participation, equality rights, and social rights. Leaving out any protection
for equality and democracy is a high price to pay for assigning human rights the role of setting the

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bounds of tolerance, and we can accommodate Rawls’ underlying idea without paying it. The intuitive
idea that Rawls uses is that countries engaging in massive violations of the most important human rights
are not to be tolerated — particularly when the notion of toleration implies, as Rawls thinks it does, full
and equal membership in good standing in the community of nations. To use this intuitive idea we do not
need to follow Rawls in equating human rights with some radically stripped down list of human rights.
Instead we can work up a view — which is needed for other purposes anyway — of which human
rights are the most important. Massive violations of the most fundamental rights can then be used as
grounds for non-tolerance.
2. THE EXISTENCE OF HUMAN RIGHTS
The most obvious way in which human rights exist is as norms of national and international law
created by enactment and judicial decisions. At the international level, human rights norms exist because
of treaties that have turned them into international law. For example, the human right not to be held in
slavery or servitude in article 4 of the European Convention and in article 8 of the International Covenant
on Civil and Political Rights exists because these treaties establish it. At the national level, human rights
norms exist because they have through legislative enactment, judicial decision, or custom become part
of a country’s law. For example, the right against slavery exists in the United States because the 13th
Amendment to the U.S. Constitution prohibits slavery and servitude. When rights are embedded in
international law we speak of them as human rights; but when they are enacted in national law we more
frequently describe them as civil or constitutional rights. As this illustrates, it is possible for a right to
exist within more than one normative system at the same time.
Enactment in national and international law is one of the ways in which human rights exist. But
many have suggested that this is not the only way. If human rights exist only because of enactment, their
availability is contingent on domestic and international political developments. Many people have sought
to find a way to support the idea that human rights have roots that are deeper and less subject to human
decisions than legal enactment. One version of this idea is that people are born with rights, that human
rights are somehow innate or inherent in human beings. One way that a normative status could be
inherent in humans is by being God-given. The U.S. Declaration of Independence (1776) claims that
people are “endowed by their Creator” with natural rights to “life, liberty, and the pursuit of happiness.”
On this view, God is the supreme lawmaker and enacted some basic human rights.
Rights plausibly attributed to divine decree must be very general and abstract (life, liberty, etc.)
so that they can apply to thousands of years of human history, not just to recent centuries. But
contemporary human rights are numerous and specific (the right to a fair trial, the right to freedom of
religion, the right to equality before the law, etc.) Even if people are born with God-given natural rights,
we need to explain how we get from those general and abstract rights to the specific rights found in
contemporary declarations and treaties.

Attributing human rights to God’s commands may give them a secure status at the metaphysical
level, but in a very diverse world it does not make them practically secure. Billions of people do not

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believe in the God found in Christianity, Islam, and Judaism. If people do not believe in God, or in the
sort of god that prescribes rights, then if you want to base human rights on theological beliefs you must
persuade these people of a rights-supporting theological view. This is likely to be even harder than
persuading them of human rights. Legal enactment at the national and international levels provides a far
more secure status for practical purposes.
Human rights might also exist independently of legal enactment by being part of actual human
moralities. It appears that all human groups have moralities, that is, imperative norms of behavior backed
by reasons and values. These moralities contain specific norms (for example, a prohibition of the
intentional murder of an innocent person) and specific values (for example, valuing human life.) One
way in which human rights could exist apart from divine or human enactment is as norms accepted in all
or almost all actual human moralities. If almost all human groups have moralities containing norms
prohibiting murder, these norms could constitute the human right to life. Human rights can be seen as
basic moral norms shared by all or almost all accepted human moralities.
This view is attractive but filled with difficulties. First, it seems unlikely that the moralities of
almost all human groups agree in condemning, say, torture, unfair criminal trials, undemocratic institutions,
and discrimination on the basis of race or sex. There is a lot of disagreement among countries and
cultures about these matters. Human rights declarations and treaties are intended to change existing
norms, not just describe the existing moral consensus. Second, it is far from clear that the shared norms
that do exist support rights held by individuals. A group may think that torture is generally a bad thing
without holding that all individuals have a high-priority right against being tortured. Third, human rights
are mainly about the obligations of governments. Ordinary interpersonal moralities often have little to
say about what governments should and should not do. This is a matter of political morality, and depends
not just on moral principles but also on views of the dangers and capacities of the contemporary state.
Yet another way of explaining the existence of human rights is to say that they exist in true or
justified moralities. On this account, to say that there is a human right against torture is just to say that
there are strong reasons for believing that it is almost always wrong to engage in torture. This approach
would view the Universal Declaration as attempting to formulate a justified political morality. It was not
merely trying to identify a preexisting moral consensus; it was also trying to create a consensus on how
governments should behave that was supported by the most plausible moral and practical reasons. This
approach requires commitment to the objectivity of moral and practical reasons. It holds that just as
there are reliable ways of finding out how the physical world works, or what makes buildings sturdy
and durable, there are ways of finding out what individuals may justifiably demand of governments.
Even if there is little present agreement on political morality, rational agreement is available to humans if
they will commit themselves to open-minded and serious moral and political inquiry. If moral reasons
exist independently of human construction, they can when combined with premises about current
institutions, problems, and resources generate moral norms different from those currently accepted or
enacted. The Universal Declaration seems to proceed on exactly this assumption. One problem with
this view is that existence as good reasons seems a rather thin form of existence for human rights. But
perhaps we can view this thinness as a practical rather than a theoretical problem, as something to be

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remedied by the formulation and enactment of legal norms. After all, the best form of existence for
human rights would combine robust legal existence with the sort of moral existence that comes from
being supported by strong moral and practical reasons.
3. WHICH RIGHTS ARE HUMAN RIGHTS?
Not every question of social justice or wise governance is a human rights issue. For example,
a country could have too much income inequality, inadequate provision for higher education, or no
national parks without violating any human rights. Deciding which norms should be counted as human
rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to
include new areas. Many political movements would like to see their main concerns categorized as
matters of human rights, since this would publicize, promote, and legitimate their concerns at the
international level. A possible result of this is “human rights inflation,” the devaluation of human rights
caused by producing too much bad human rights currency (Cranston 1973, Orend 2002, Wellman
1999, Griffin 2001b).
One way to avoid rights inflation is to follow Cranston in insisting that human rights only deal
with extremely important goods, protections, and freedoms. A supplementary approach is to impose
several justificatory tests for specific human rights. For example, it could be required that a proposed
human right not only deal with some very important good but also respond to a common and serious
threat to that good, impose burdens on the addressees that are justifiable and no larger than necessary,
and be feasible in most of the world’s countries. This approach restrains rights inflation with several
tests, not just one master test.
Human rights are specific and problem-oriented (Dershowitz 2004, Donnelly 2003, Shue 1996,
Talbott 2005). Historic bills of rights often begin with a list of complaints about the abuses of previous
regimes or eras. Bills of rights may have preambles that speak grandly and abstractly of life, liberty, and
the inherent dignity of persons, but their lists of rights contain specific norms addressed to familiar
political, legal, or economic problems.
In deciding which specific rights are human rights it is possible to make either too little or too
much of international documents such as the Universal Declaration and the European Convention. One
makes too little of them by proceeding as if drawing up a list of important rights were a new question,
never before addressed, and as if there were no practical wisdom to be found in the choices of rights
that went into the historic documents. And one makes too much of them by presuming that those
documents tell us everything we need to know about human rights. This approach involves a kind of
fundamentalism: it holds that if a right is on the official lists of human rights that settles its status as a
human right . But the process of listing human rights in the United Nations and elsewhere was a political
process with plenty of imperfections. There is little reason to take international diplomats as the most
authoritative guides to which human rights there are. Further, even if a treaty could settle the issue of
whether a certain right is a human right within international law, such a treaty cannot settle its weight. It
may claim that the right is supported by weighty considerations, but it cannot make this so. If an
international treaty enacted a right to visit national parks without charge as a human right, the ratification
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of that treaty would make free access to national parks a “human right” within international law. But it
would not be able to make us believe that the right to visit national parks without charge was sufficiently
important to be a real human right.

Once one takes seriously the question of whether some norms that are now counted as human
rights do not merit that status (Griffin, 2001a and 2001b) and whether some norms that are not currently
accepted as human rights should be upgraded, there are many possible ways to proceed. One approach
that should be avoided puts a lot of weight on whether the norm in question really is, or could be, a right
in a strict sense. This approach might yield arguments that human rights cannot include children’s rights
since young children cannot exercise their rights by invoking, claiming, or waiving (Hart 1955, Wellman
1995). This approach begs the question of whether human rights are rights in a strict sense rather than
a fairly loose one. The human rights movement and its purposes are not well served by being forced into
a narrow conceptual framework. The most basic idea of the human rights movement is not that of a
right, but the idea of regulating the behavior of governments through international norms. And when we
look at human rights documents we find that they use a variety of normative concepts. Sometimes they
speak of rights, as when the Universal Declaration says that “Everyone has the right to freedom of
movement” (article 13). Sometimes these documents issue prohibitions, as when the Universal Declaration
says that “No one shall be subjected to arbitrary arrest, detention, or exile” (article 9). And at other
times they express general principles, as illustrated by the Universal Declaration’s claim that “All are
equal before the law” (article 7).

A better way to evaluate a norm that is nominated for the status of human right is to consider
whether it is compatible with the general idea of human rights that we find in international human rights
documents. If the general idea of human rights suggested above is correct, it requires affirmative answers
to questions such as whether this norm could have governments as its primary addressees, whether it
ensures that people can have minimally good lives, whether it has high priority, and whether it can be
supported by strong reasons that make plausible its universality and high priority.

Questions about which rights are human rights arise in regard to many families of human rights.
Discussed below are (1) Civil and Political Rights; (2) Social Rights; (3) Minority and Group Rights;
and (4) Environmental Rights.

3.1 CIVIL AND POLITICAL RIGHTS

These rights are familiar from historic bills of rights such as the French Declaration of the Rights
of Man and the Citizen (1789) and the U.S. Bill of Rights (1791, with subsequent amendments).
Contemporary sources include the first 21 articles of the Universal Declaration, and such treaties as the
European Convention, the International Covenant on Civil and Political Rights, the American Convention
on Human Rights, and the African Charter on Human and People’s Rights. Some representative
formulations follow:

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 Everyone has the right to freedom of thought and expression. This right includes freedom to
seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in
writing, in print, in the form of art, or through any other medium of one’s choice. (American Convention
on Human Rights, article 13.1)

Everyone has the right to freedom of peaceful assembly and to freedom of association with
others, including the right to form and to join trade unions for the protection of his interests (European
Convention, article 11).

1. Every citizen shall have the right to participate freely in the government of his country, either
directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every
citizen shall have the right of equal access to the public service of his country. 3. Every individual shall
have the right of access to public property and services in strict equality of all persons before the law
(African Charter, article 13).

These rights fit the general idea of human rights suggested above. First, they are political norms
that primarily impose responsibilities on governments and international organizations. Second, they are
minimal norms in that they protect against the worst things that happen in political society rather than
setting out standards of excellence in government. Third, they are international norms establishing
standards for all countries — and that have been accepted by more than 150 of the world’s countries.
Finally, it is plausible to make claims of high priority on their behalf, and to support these claims of
importance with strong reasons. Consider the right to freedom of movement. One approach to justifying
this right and its high priority would argue the importance of free movement to being able to find the
necessities of life, to pursuing plans, projects, and commitments, and to maintaining ties to family and
friends. A related approach argues that it is impossible to make use of other human rights if one cannot
move freely. The right to political participation is undermined if a person is not permitted to go to
political rallies or to the polls.

Most civil and political rights are not absolute—they are in some cases overridden by other
considerations and rightly set aside in those cases. For example, some civil and political rights can be
restricted by public and private property rights, by restraining orders related to domestic violence, and
by legal punishments. Further, after a disaster such as a hurricane or earthquake free movement is often
appropriately suspended to keep out the curious, to permit access of emergency vehicles and equipment,
and to prevent looting. The International Covenant on Civil and Political Rights permits rights to be
suspended during times “of public emergency which threatens the life of the nation” (article 4). But it
excludes some rights from suspension including the right to life, the prohibition of torture, the prohibition
of slavery, the prohibition of ex post facto criminal laws, and freedom of thought and religion.

3.2 SOCIAL RIGHTS

Besides the civil and political rights just discussed, the Universal Declaration includes social (or
welfare) rights. These include equality and nondiscrimination for women and minorities, access to

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employment opportunities, fair pay, safe and healthy working conditions, the right to form trade unions
and bargain collectively, social security, an adequate standard of living (covering adequate food, clothing,
and housing), health care, and education. These rights were made part of international law by treaties
such as the International Covenant on Economic, Social, and Cultural Rights, European Social Charter,
and the Protocol of San Salvador (1988), which amended the American Convention on Human Rights.
Whether social rights are genuine human rights is discussed below:
3.3 MINORITY AND GROUP RIGHTS
Concern for the equal rights of women and minorities is a longstanding concern of the human
rights movement. Human rights documents emphasize that all people, including women and members of
minority ethnic and religious groups, have the same basic rights and should be able to enjoy them
without discrimination. The right to freedom from discrimination figures prominently in the Universal
Declaration and subsequent treaties. The Civil and Political Covenant, for example, commits its
participating states to respecting and protecting their people’s rights “without distinction of any kind,
such as race, color, sex, language, political or other opinion, national or social origin, property, birth, or
social status”.
Some standard individual rights are especially important to ethnic and religious minorities, including
rights to freedom of association, freedom of assembly, freedom of religion, and freedom from
discrimination. Human rights documents also include rights that refer to minorities explicitly and give
them special protections. For example, the Civil and Political Covenant in article 27 says that persons
belonging to ethnic, religious, or linguistic minorities “shall not be denied the right, in community with
other members of their group, to enjoy their own culture, to profess and practice their own religion, or
to use their own language.”
Since 1964 the United Nations has mainly dealt with the rights of women and minorities through
specialized treaties such as the International Convention on the Elimination of All Forms of Racial
Discrimination (1965); the Convention on the Elimination of All Forms of Discrimination Against Women
(1979); and the Convention on the Rights of the Child (1989). See also the Draft Declaration on the
Rights of Indigenous Peoples (1945). Specialized treaties allow international norms to address unique
problems of particular groups such as prostitution and trafficking in the case of women, custody issues
in the case of children, and the loss of territory by indigenous peoples.
Minority groups are often targets of violence. Human rights norms call upon governments to
refrain from such violence and to provide protections against it. This work is partly done by the right to
life, which is a standard individual right. It is also done by the right against genocide which protects
groups from attempts to destroy or decimate them. The Genocide Convention was one of the first
human rights treaties after World War II. It gives the following definition of genocide: …genocide
means any of the following 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.
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 The right against genocide seems to be a group right. It is held by groups and provides protection
to groups as groups. It is largely negative in the sense that it requires governments and other agencies to
refrain from destroying groups; but it also requires that legal and other protections be implemented for
this purpose.
Can a group right fit the general idea of human rights proposed earlier? It can if we broaden the
conception of who can hold human rights to include ethnic and religious groups. This can be made more
palatable, perhaps, by recognizing that the beneficiaries of the right against genocide are individual
humans who enjoy greater security against attempts to destroy the group to which they belong (Kymlicka
1989).
3.4 ENVIRONMENTAL RIGHTS
In spite of the danger of rights inflation, there are doubtless norms that should be counted as
human rights but are not generally so treated. After all, there are lots of areas in which people’s dignity
and fundamental interests are threatened by governmental actions and omissions. Consider environmental
rights, which are often defined as rights of animals or of nature itself. Conceived in this way they do not
fit our general idea of human rights because the rightholders are not humans or human groups. But more
modest formulations are possible; environmental rights can be understood as rights to an environment
that is healthy and safe. Such a right is human-oriented: it does not cover directly issues such as the
claims of animals, biodiversity, or sustainable development.
The right to a safe environment can be sculpted to fit the general idea of human rights suggested
above by conceiving it as primarily imposing responsibilities on governments and international
organizations. It calls on them to regulate the activities of both governmental and nongovernmental
agents to ensure that environmental safety is maintained. Citizens are secondary addressees. This right
sets out a minimal environmental standard, safety for humans, rather than calling for higher and broader
standards of environmental protection. (Countries that are able to implement higher standards are of
course free to enact those standards in their law or bill of rights.)
A justification for this right must show that environmental problems pose serious threats to
fundamental human interests, values, or norms; that governments may appropriately be burdened with
the responsibility of protecting people against these threats; and that most governments actually have
the ability to do this. This last requirement — feasibility — may be the most difficult. Environmental
protection is expensive and difficult, and many governments will be unable to do very much of it while
meeting other important responsibilities. The problem of feasibility in poorer countries might be addressed
here in the same way that it was in the Social Covenant. That treaty commits governments not to the
immediate realization of social rights for all, but rather to making the realization of such rights a high-
priority goal and beginning to take steps towards its fulfillment.

In thinking about adding new rights to the list of human rights it is important to recognize that
implementing a right is an activity with opportunity costs. If no new resources are available, implementing
a new right will mean that fewer resources are available for the implementation of existing rights. Rights
are not magical sources of supply (Holmes and Sunstein 1999, Nickel 2006, ch. 5).

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4. ARE SOCIAL RIGHTS GENUINE HUMAN RIGHTS?
The Universal Declaration included social (or “welfare”) rights) that addressed matters such as
education, food, and employment. Their inclusion has been the source of much controversy (Beetham
1995). Social rights are often alleged to be statements of desirable goals but not really rights. The
European Convention did not include them (although it was later amended to include the right to
education). Instead they were put into a separate treaty, the European Social Charter. When the United
Nations began the process of putting the rights of the Universal Declaration into international law, it
followed the model of the European system by treating economic and social standards in a treaty
separate from the one dealing with civil and political rights. This treaty, the International Covenant on
Economic, Social, and Cultural Rights (the “Social Covenant,” 1966), treated these standards as rights
— albeit rights to be progressively realized.

A human rights treaty usually contains three parts: (1) a list of rights; (2) a specification of what
the parties are agreeing to do in regard to this list; and (3) a system to monitor and promote compliance
with the agreement. The Social Covenant’s list of rights includes nondiscrimination and equality for
women in the economic and social area (articles 2 and 3), freedom to work and opportunities to work
(article 4), fair pay and decent conditions of work (article 7), the right to form trade unions and to strike
(article 8), social security (article 9), special protections for mothers and children (article 10), the right
to adequate food, clothing, and housing (article 11), the right to basic health services (article 12), the
right to education (article 13), and the right to participate in cultural life and scientific progress (article
15).

Article 2.1 of the Social Covenant sets out what the parties commit themselves to do about this
list, namely to “take steps, individually and through international assistance and co-operation…to the
maximum of its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant.” In contrast, the Civil and Political Covenant simply commits
its signatories to “respect and to ensure to all individuals within its territory the rights recognized in the
present Covenant” (article 2.1). The contrast between these two levels of commitment is one of the
things that has led some people to suspect that economic and social rights are really just goals.

The system to monitor and promote compliance with the Social Covenant is weak since it
merely requires participating countries to make periodic reports on measures taken to comply with the
treaty. Countries agree “to submit…reports on the measures which they have adopted and the progress
made in achieving the observance of the rights recognized herein” (Article 16). A committee of experts,
created by the Economic and Social Council in 1987, is given the job of looking at the progress reports
from the participating countries. This body, the Committee on Economic, Social and Cultural Rights,
studies the reports, discusses them with representatives of the governments reporting, and issues
interpretive statements (General Comments) on the requirements of the treaty. Since 1991 it has issued
more than a dozen of these interpretive statements (United Nations 1991). The Social Covenant has no
system for receiving complaints of violations of economic and social rights.

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 Why did the Social Covenant opt for progressive implementation and thereby treat its rights as
being somewhat like goals? The main reason, I think, is that more than half of the world’s countries
were in no position, in terms of economic, institutional, and human resources, to realize these standards
fully or even largely. For many countries, noncompliance due to inability would have been certain if
these standards had been treated as immediately binding. We will return to this topic below.

Opponents of social rights often deny them the status of human rights, restricting that standing
to civil and political rights. Familiar objections to social rights include the following: (1) they do not
serve truly fundamental interests; (2) they are too burdensome on governments and taxpayers; and (3)
they are not feasible in less-developed countries (on these issues see Beetham 1995; Cranston 1967,
1973; Howard 1987; Nickel 2005, 2006).

Let’s first address the issue of importance. Human rights, such as rights to freedom from torture
or to fair trials in criminal and civil cases, set out minimal but extremely important standards that
governments everywhere should meet. One might object that social rights do not meet this standard of
great importance. Perhaps they identify valuable goods, but not extremely valuable goods. If this objection
is that some formulations of social rights in international human rights documents are too expansive and
go beyond what is necessary to a minimally good life it can be conceded and those formulations rejected.
For example, the Universal Declaration included a putative right to holidays with pay (article 24), and
such a right pertains to a good life, not to a minimally good life. It is far from the case, however, that all
or most social rights pertain to superficial interests. To discuss the issue of importance I will use two
social rights as examples: the right to an adequate standard of living, and the right to free public education.
These rights require governments to try to remedy widespread and serious evils such as hunger and
ignorance.

The importance of food and other basic material conditions of life is easy to show. These goods
are essential to people’s ability to live, function, and flourish. Without adequate access to these goods,
interests in life, health, and liberty are endangered and serious illness and death are probable. The
connection between having the goods the right guarantees and having a minimally good life is direct and
obvious — something that is not always true with other human rights (Orend 2002, 115).

In the contemporary world lack of access to educational opportunities typically limits (both
absolutely and comparatively) people’s abilities to participate fully and effectively in the political and
economic life of their country (Hodgson 1998). Lack of education increases the likelihood of
unemployment and underemployment.

Another way to support the importance of social rights is to show their importance to the full
implementation of civil and political rights. If a government succeeds in eliminating hunger and providing
education to everyone this promotes people’s abilities to know, use, and enjoy their liberties, due
process rights, and rights of political participation. This is easiest to see in regard to education. Ignorance
is a barrier to the realization of civil and political rights because uneducated people often do not know

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what rights they have and what they can do to use and defend them. It is also easy to see in the area of
democratic participation. Education and a minimum income make it easier for people at the bottom
economically to follow politics, participate in political campaigns, and to spend the time and money
needed to go to the polls and vote.
The second objection is that social rights are too burdensome. It is very expensive to guarantee
to everyone basic education and minimal material conditions of life. Perhaps social rights are too expensive
or burdensome to be justified even in rich countries. Frequently the claim that social rights are too
burdensome uses other, less controversial human rights as a standard of comparison, and suggests that
social rights are substantially more burdensome or expensive than liberty rights. Suppose that we use as
a basis of comparison liberty rights such as freedom of communication, association, and movement.
These rights require both respect and protection from governments. And people cannot be adequately
protected in their enjoyment of liberties such as these unless they also have security and due process
rights. The costs of liberty, as it were, include the costs of law and criminal justice. Once we see this,
liberties start to look a lot more costly. To provide effective liberties to communicate, associate, and
move it is not enough for a society to make a prohibition of interference with these activities part of its
law and accepted morality. An effective system of provision for these liberties will require a legal scheme
that defines personal and property rights and protects these rights against invasions while ensuring due
process to those accused of crimes. Providing such legal protection in the form of legislatures, police,
courts, and prisons is extremely expensive.
Further, we should not think of social rights as simply giving everyone a free supply of the
goods these rights protect. Guarantees of things like food and housing will be intolerably expensive and
will undermine productivity if everyone simply receives a free supply. A viable system of social rights
will require most people to provide these goods for themselves and their families through work as long
as they are given the necessary opportunities, education, and infrastructure. Government-implemented
social rights provide guarantees of availability (or “secure access”), but governments should have to
supply the requisite goods in only a small fraction of cases. Note that primary education is often an
exception to this since many countries provide free public education irrespective of ability to pay.
Countries that do not accept and implement social rights still have to bear somehow the costs
of providing for the needy since these countries — particularly if they recognize democratic rights of
political participation — are unlikely to find it tolerable to allow sizeable parts of the population to
starve and be homeless. If government does not supply food, clothing, and shelter to those unable to
provide for themselves, then families, friends, and communities will have to shoulder this burden. It is
only in the last century that government-sponsored social rights have taken over a substantial part of the
burden of providing for the needy. The taxes associated with social rights are partial replacements for
other burdensome duties, namely the duties of families and communities to provide adequate care for
the unemployed, sick, disabled, and aged. Deciding whether to implement social rights is not a matter
of deciding whether to bear such burdens, but rather of deciding whether to continue with total reliance
on a system of informal provision that distributes benefits in a very spotty way and whose costs fall very
unevenly on families, friends, and communities.
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 Once we recognize that liberty rights also carry high costs, that intelligent systems of provision
for social rights supply the requisite goods to people in only a small minority of cases, and that these
systems are substitutes for other, more local ways of providing for the needy, the difference between
the burdensomeness of liberty rights and the burdensomeness of social rights ceases to seem so large.
Even if the burdens imposed by social rights are not excessive, they might still be wrong to
impose on individuals. Libertarians object to social rights as requiring impermissible taxation. Nozick,
for example, says that “Taxation of earnings from labor is on a par with forced labor” (Nozick 1974,
169). This view is vulnerable to an attack asserting two things. First, taxation is permissible when used
to discharge the duties of taxpayers, when, for example, it is used to support government-organized
systems of humanitarian assistance that fulfill more effectively duties of assistance that all individuals
have (Beetham 1995, 53). Second, property rights are not so strong that they can never be outweighed
by the requirements of meeting other rights.
The third objection to social rights is that they are not feasible in many countries. It is very
expensive to provide guarantees of subsistence, minimal public health measures, and basic education.
As we saw above, the Social Covenant dealt with the issue of feasibility by calling for progressive
implementation, that is, implementation as financial and other resources permit. Does this view of
implementation turn social rights into high-priority goals? If so, is that a bad thing?
Standards that outrun the abilities of many of their addressees are good candidates for normative
treatment as goals. Treating such standards as goals, which allows us to view them as largely aspirational
rather than as imposing immediate duties, avoids massive problems of inability-based noncompliance.
One may worry, however, that this is too much of a demotion. Goals seem much weaker than rights.
But goals can be formulated in ways that make them more like rights. Goals can be assigned addressees
(the party who is to pursue the goal), beneficiaries, scopes that define the objective to be pursued, and
a high level of priority. Strong reasons for the importance of these goals can be provided. And supervisory
bodies can monitor levels of progress and pressure low-performing addressees to attend to and work
on their goals.
Treating very demanding rights as goals has several advantages. One is that proposed goals
that exceed one’s abilities are not as farcical as proposed duties that exceed one’s abilities. Creating
grand lists of human rights that many countries cannot realize seems fraudulent to many people, and
perhaps this fraudulence is reduced if we understand that these “rights” are really goals that countries
should promote. Goals are inherently ability-calibrated. What you should do now about your goals
depends on your abilities and other commitments. Goals coexist happily with low levels of ability to
achieve them. Another advantage is that goals are flexible; addressees with different levels of ability can
choose ways of pursuing the goals that suit their circumstances and means. Because of these attractions
of goals, it will be worth exploring ways to transform very demanding human rights into goals. The
transformation may be full or partial.
A right together with its supporting reasons might be divided into two parts. One part, call it the
“demand side,” sets out the rightholder’s claim and the reasons why it is very valuable or important that

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this claim be fulfilled. If the right is the right to a fair trial when one is arrested and accused of a crime,
the demand side would set out the rightholder’s claim to a fair trial and the reasons why that claim is
very valuable or important. The other part, the “supply side,” would set out the addressees’ responsibilities
in regard to the rightholder’s claim. It would explain why this claim to a fair trial is a matter of duty, what
the duties are, and why it is these particular addressees rather than other possible addressees that have
the duty (Feinberg 1973).
A goal that is similar to a right could also be divided into these two parts. The demand side
would set out the beneficiary’s claim or demand and the reasons why it is very desirable or important
that this demand be fulfilled. For example, the demand side might set out the reasons why it is desirable
for the beneficiary to have access to employment. And the supply side would set out the addressee’s
responsibility in regard to the beneficiary’s demand. It would explain why promoting access to
employment for the beneficiary should be a goal for the addressee. It does not impose duties on the
addressee, but it shows that the addressee has good reasons for acting to satisfy the demand.
Since even a goal that is supported by good reasons imposes no duties — that is, fails to be
mandatory in character — we may think that such goals are poor substitutes for rights and should not
be called “rights.” But it is possible to create right-goal mixtures that contain some mandatory elements
and that therefore seem more like real rights. A minimal right-goal mixture would include a duty to try to
realize the goal as quickly as possible. Here the demand side would set out the beneficiary’s demand or
claim and the reasons why it is very desirable or important that this demand be fulfilled. And the supply
side would explain not only why the addressee has good reasons to pursue this goal, but also explain
why the addressee has a duty to try to realize this goal with all deliberate speed. The economic and
social rights in the Social Covenant seem to fit this model. The countries ratifying the Covenant agree to
make it a matter of government duty to realize the list of rights as soon as possible. As we saw earlier,
the Social Covenant’s signatories agree to “take steps, individually and through international assistance
and co-operation to the maximum of its available resources, with a view to achieving progressively the
full realization of the rights recognized in the present Covenant.” The signatories agree, on this interpretation,
to make it a matter of duty to realize the listed rights as soon and as far as resources permit.
A problem with such a right-goal mixture is that it allows the addressee great discretion concerning
when to do something about the right and how much to do. A body supervising compliance with a
human rights treaty may wish to remove some of this discretion by requiring that the addressees at least
take some significant and good faith steps immediately and regularly and that these steps be documented.
Duties to try are less vaporous if they are combined with duties that require immediate steps. Countries
may be required to act in certain ways (e.g., make a good faith effort and be prepared to demonstrate
that they have done so), set specific benchmarks and timetables, establish agencies to work on the
goals, provide them with budgets, and use expert assistance from international agencies. To facilitate
the monitoring of compliance the country may be required to collect data continuously concerning
realization of the goals, make periodic reports, and allow its citizens to complain to the monitoring body
about failures to pursue the goals energetically (United Nations 1991).

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 Article 14 of the Social Covenant imposes a conditional duty in regard to the right to education
declared in article 13. It says that countries that “have not been able to secure” compulsory primary
education, free of charge, “undertake, within two years, to work out and adopt a detailed plan of action
for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the
principle of compulsory education free of charge for all.” Compliance with this requirement, which is
only present for the right to education, involves planning and setting timetables. Instead of, or in addition
to, requiring plans and timetables a goal-right mixture could require immediate compliance with minimal
standards. The idea is that minimal provision might be within the capacity of all addressees. For ex-
ample, countries could be required very soon to provide all children with reading and writing instruc-
tion.

These ways of creating right-goal mixtures allow us to see that some rights can be goals while
still having enough mandatory elements to be counted as rights in a meaningful sense.

A complementary approach to implementing social rights (and other demanding rights as well)
in developing countries emphasizes ability enhancement rather than burden reduction. It seeks to in-
crease the ability of developing countries to implement rights effectively. Possible strategies include
using aid to increase the resources available for this purpose, providing education to current and future
officials, offering technical assistance concerning the mechanisms of implementation, and battling cor-
ruption. Human rights theory needs better accounts of how the rights, e.g., of a Haitian create (moral
and legal) duties not just for the Haitian government but also for (1) other governments, (2) international
organizations, (3) individuals resident in Haiti, and (4) individuals resident in other countries.

John Rawls has proposed a duty of liberal democratic countries to aid poor or “burdened”
countries. Rawls defines “burdened societies” as ones that “lack the political and cultural traditions, the
human capital and know-how and, often, the material and technological resources needed to be well-
ordered” (Rawls 1999). Rawls holds that well-off liberal countries have a moral duty to assist bur-
dened societies. Unfortunately Rawls does not provide much justification for this claim. In particular he
does not use his idea of an international “original position” to work out how the justification for such a
duty would go and what objections it would need to overcome.

A good defense of a duty of well-off governments to assist poor countries in realizing human
rights would not automatically impose that duty on the citizens of those well-off countries. But perhaps
citizens should share somehow in duties of international aid. One approach to explaining how and why
citizens share in these duties involves viewing the citizens of a democratic country as having ultimate
responsibility for the human rights duties of their government. If their government has a duty to respect
or implement the right to a fair trial, or a duty to aid poor countries, its citizens share in that duty. They
are required as voters, political agents, and taxpayers to try to promote and support their government’s
compliance with its human rights duties. This principle of shared duty is particularly attractive in demo-
cratic societies where the citizens are the ultimate source of political authority. This view makes indi-
viduals back-up addressees for the duties of their governments.

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 Thomas Pogge has taken a related but slightly different approach to generating individual duties
from human rights that have governments as their primary addressees. Pogge emphasizes the Universal
Declaration’s article 28 which says that “Everyone is entitled to a social and international order in which
this the rights and freedoms set forth in this Declaration can be fully realized.” Pogge sees in this article
a plausible norm, namely that both countries and individuals have negative duties not to be complicit in
an international order that unfairly disadvantages poor countries and the people in them. A coercive
political order, whether national or international, “must not avoidably restrict the freedom of some so as
to render their access to basic necessities insecure — especially through official denial or deprivation.
If it does, then all human agents have a negative duty, correlative to the postulated social and economic
human rights, not to cooperate in upholding it unless they compensate for their cooperation by protecting
its victims or by working for its reform. Those violating this duty share responsibility for the harms
(insecure access to basic necessities) produced by the unjust institutional order in question” (Pogge
2002, 67).

5. INTERNATIONAL HUMAN RIGHTS LAW AND ORGANIZATIONS

International law now contains many functioning human rights treaties. A number of them have
been ratified by more than three-quarters of the world’s countries. This section sketches the development
of international measures to promote and protect human rights. The efforts to protect human rights
through international treaties began in 1919 in the League of Nations and expanded after World War II
in international organizations such as the United Nations, the Council of Europe, the Organization of
American States, and the African Union. The international promotion and protection of human rights
complements the legal protection of human rights at the national level.

5.1 HISTORICAL OVERVIEW

When a government violates the human rights of its residents they may be able to appeal to the
country’s laws or bill of rights and get a court to order that the violations stop and that the government
provide remedies. If suitable national laws and bills of rights are unavailable, however, victims of human
rights violations may seek help from international law and organizations. Traditionally, international law
did not confer rights and protections on individual persons; its concern was exclusively the rights and
duties of countries or states. Victims of human rights violations could appeal to heaven, and invoke
standards of natural justice, but there were no international organizations working to formulate and
enforce legal rights of individuals. After World War I the League of Nations had some success in using
minority rights treaties to protect national minorities in Europe, but the effort ended with the rise of Nazi
Germany and the beginning of World War II.

Countries fighting Hitler’s Germany decided that after their victory a new international organization
would be needed to promote international peace and security, and that securing human rights in all
countries would help lessen the dangers of falling back into large wars (Lauren 1998, Morsink 1999,
Glendon 2001). Indeed, prior to the official formation of the United Nations, the Allies imposed human
rights obligations on Italy and Central European powers in peace treaties. Similar obligations were

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imposed on Germany and Japan during the Allied occupation (Henkin 1999). The United Nations was
created in 1945. Its Charter established goals of protecting future generations from the “scourge of
war” and promoting “fundamental human rights” and the “dignity and worth of the human person.”

Not long after its founding the UN established a committee with the charge of writing an
international bill of rights. This document was to be similar to historic bills of rights such as the French
Declaration of the Rights of Man and of the Citizen (1789) and the United States Bill of Rights (1791),
but was to apply to every person in every country. This international bill of rights emerged in December
1948 as the Universal Declaration of Human Rights (Morsink 1999, Lauren 1998). Although some
diplomats had hoped for a binding human rights treaty that countries joining the UN would have to
adopt, the Universal Declaration was a set of recommended standards rather than a binding treaty. By
now, however, almost all of the norms in the Universal Declaration have been incorporated in widely-
ratified UN human rights treaties.

The Universal Declaration has been astoundingly successful in setting the pattern for subsequent
human rights treaties and in getting countries to include its list of rights in national constitutions and bills
of rights (Morsink 1999). The Universal Declaration, and the treaties that followed it, largely define
what people today mean when they speak of human rights. As we saw in Section 1 above, the Universal
Declaration proposed six families of rights including security rights, due process rights, liberty rights,
rights of political participation, equality rights, and social rights. The inclusion of social rights to goods
such as education and an adequate standard of living took the Declaration beyond its 18th century
antecedents.

The Universal Declaration was born at a time that made its success difficult. The Declaration’s
approval by the General Assembly coincided with the beginning of the Cold War — an ideological and
geopolitical conflict between capitalist and communist countries that continued almost until 1990.
Ideological differences and hostilities might have stalled the human rights movement if not for human
rights advances in Europe. In the early 1950s Western European countries formed the Council of
Europe and created the European Convention for the Protection of Human Rights and Fundamental
Freedoms. This international treaty entered into force September 3, 1953, and was binding upon
countries that ratified it. The European Convention established basic rights similar to those in the Universal
Declaration, but included provisions for enforcement and adjudication. The European Convention gave
birth to the European Court of Human Rights, whose job is to receive, evaluate, and investigate
complaints, mediate disputes, issue judgements, and interpret the Convention. The human rights set
forth in the Convention are legally enforceable rights to which member states are bound. In creating the
European Convention and Court, the countries of Western Europe gradually proved that effective
protection of human rights could be provided at the international level.

Inspired by the success of the European Convention, the United Nations followed a similar
path, creating numerous treaties aimed at the enforcement and adjudication of the rights set forth in the
Universal Declaration. These documents establish legal obligations among the ratifying countries to

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implement international rights within their national legal and political systems. By 2000 the main human
rights treaties had been ratified by a large majority of the world’s countries. As Ann Bayefsky writes,
“Every UN member state is a party to one or more of the six major human rights treaties. 80% of states
have ratified four or more” (Bayefsky 2001).

Regional arrangements, similar to those in Europe, exist in the Americas and Africa (see 5.4.2
and 5.4.3 below). Efforts to protect human rights through international law have obviously not been
totally successful — lots of human rights violations still occur today in all parts of the world. International
human rights law is a work in progress, and has developed much farther than one could have expected
in 1950 or even in 1975.

5.2 UNITED NATIONS HUMAN RIGHTS TREATIES

International human rights treaties transform lists of human rights into legally binding state
obligations. The first such United Nations treaty was the Genocide Convention, approved in 1948 —
just one day before the Universal Declaration. The Convention defines genocide and makes it a crime
under international law. The Convention requires states to enact national legislation prohibiting genocide,
to try to punish persons or officials who commit genocide, and to allow persons accused of genocide to
be transported to countries capable of trying the charge. It also calls for action by UN bodies to
prevent and suppress acts of genocide (Genocide Convention, articles 5, 7, 9). Currently the Genocide
Convention has more than 130 parties (1948). The International Criminal Court, created by the Rome
Treaty of 1998, is authorized to prosecute genocide at the international level, along with crimes against
humanity and war crimes.

After the creation of the Universal Declaration, the Human Rights Commission proceeded to
try to create treaties that would make the rights in the Universal Declaration into norms of international
law. Because of the Cold War, the effort went ahead at a glacial pace. To accommodate the ideological
division between those who believed in the importance of social rights and those who did not, or who
thought that social rights could not be enforced in the same way as civil and political rights, the Commission
ultimately decided to create two separate treaties. Drafts of the two International Covenants were
submitted to the General Assembly for approval in 1953, but approval was much delayed. Almost
twenty years after the Universal Declaration, the United Nations General Assembly finally approved
the International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social, and Cultural Rights (both 1966). The Civil and Political Covenant contains most of the civil and
political rights found in the Universal Declaration. The Social Covenant contains the economic and
social rights found in the second half of the Universal Declaration. These treaties embodying Universal
Declaration rights received enough ratifications to become operative in 1976 and have now become
the most important UN human rights treaties. To date, these treaties have been ratified by about 75
percent of the world’s countries (See Status of Ratifications of the Principal Human Rights Treaties).

A country ratifying a UN human rights treaty agrees to respect and implement within domestic
law the rights the treaty covers. It also agrees to accept and respond to international scrutiny and

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criticism of its compliance. It does not necessarily agree to make the human rights norm directly
enforceable in domestic courts. That usually requires implementing legislation.

A common method of treaty implementation within the UN is the creation of a standing committee
(or treaty body) to monitor states’ performance, and to which member states are required to submit
periodic reports on compliance. The Civil and Political Covenant, which has been ratified by more than
150 countries, illustrates this approach. Rather than creating a human rights court, the Covenant created
the Human Rights Committee (HRC), to promote compliance with its norms. The eighteen members of
the HRC serve as independent experts rather than as state representatives. This potentially gives them
some independence from the positions of their governments. The HRC frequently expresses its views
as to whether a particular practice is a human rights violation, but it is not authorized to issue legally
binding decisions (Alston and Crawford 2000).

The HRC is responsible for publishing “general comments” regarding the interpretation of the
Civil and Political Covenant, reviewing periodic state reports on implementation of the Covenant, and
receiving and investigating complaints of human rights violations made by states and individuals. The
Committee holds public sessions in which it hears from non-governmental organizations such as Amnesty
International and meets with representatives of the state making the report. The HRC then publishes
“Concluding Observations” that evaluate human rights compliance by the reporting country. This process
requires countries to hold discussions with the Human Rights Committee and have their human rights
problems exposed to world public opinion. The reporting procedure is useful in encouraging countries
to identify their major human rights problems and to devise methods of dealing with them over time.
Unfortunately, the reporting system has few teeth when dealing with countries that stonewall or fail to
report, and the Human Rights Committee’s conclusions often receive little attention (Bayefsky 2001).

In addition to the required reporting procedure, the HRC has the authority to consider state
complaints, alleging human rights violations by another member state (see article 41). The Civil and
Political Covenant also has an optional provision requiring separate ratification that authorizes the HRC
to receive, investigate, and mediate complaints from individuals alleging that their rights under the Covenant
have been violated by a participating state (Joseph, Schultz, and Castan 2000). By 2006, 105 of the
155 states adhering to the Covenant had ratified this optional provision.

Many other UN human rights treaties are implemented in roughly the same way as the Civil and
Political Covenant. These include the International Convention on the Elimination of All Forms of Racial
Discrimination (1966), the Convention on the Elimination of All Forms of Discrimination Against Women
(1979), the Convention on the Rights of the Child (1989), the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Migrant Workers Convention
(1990). These human rights treaties create their own treaty bodies to monitor compliance and
implementation. The proliferation of treaty bodies and reporting requirements has led to considerable
overlap and inefficiency within the UN human rights system (Bayefsky 2001).

The standard UN system for implementing human rights not very powerful. It is stronger on the

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promotion of human rights than on their protection through adjudication. Unlike the regional systems in
Europe and the Americas, it does not have an international human rights court with powers to order
states to change their practices or compensate a victim. Its tools are largely limited to consciousness-
raising, persuasion, mediation, and exposure of violations to public scrutiny.

5.3 OTHER UNITED NATIONS HUMAN RIGHTS AGENCIES

Human Rights treaties are only one part of the UN’s human rights program. In fact, the UN has
several agencies and courts, independent of its human rights treaties, to address continuing human rights
abuses. Three notable agencies are the High Commissioner for Human Rights (OHCHR), which serves
as a full-time advocate for human rights within the UN; Human Rights Council, which took over the
main functions of the now defunct Human Rights Commission in addressing gross human rights violations;
and the Security Council, which has the authority to impose diplomatic and economic sanctions, sponsor
peacekeeping missions, and authorize military interventions in cases of human rights emergencies.

5.3.1 THE HIGH COMMISSIONER FOR HUMAN RIGHTS

In 1993, following recommendations included in the World Conference on Human Rights in
Vienna, the United Nations General Assembly established the office of the High Commissioner for
Human Rights as part of the UN Secretariat. The OHCHR coordinates the many human rights activities
within the UN, working closely with treaty bodies, such as the Human Rights Committee, and other
UN agencies such as the Human Rights Council. The High-Commissioner assists in the development of
new treaties and procedures, sets the agenda for human rights agencies within the UN, and provides
advisory services to governments. Most importantly, the High Commissioner serves as a full-time advocate
for human rights within the United Nations (Korey 1998). The OHCHR also has field offices throughout
the world, including offices in Central Asia, East and Southern Africa, the Pacific, Latin America, and
the Middle East.

5.3.2 THE HUMAN RIGHTS COUNCIL

In 2006 the longstanding UN Human Rights Commission was replaced by a new Human
Rights Council. The Human Rights Commission was a 56 member committee, authorized by the UN
Charter, consisting of state representatives. The stated goals of the replacement were to eliminate
“double standards and politicization.” The new Council’s responsibilities include “promoting universal
respect for the protection of all human rights,” addressing gross human rights violations, making
recommendations to the General Assembly, and “responding promptly to human rights emergencies.”
The Council’s other responsibilities include providing direct assistance to UN member states to help
them meet their human rights responsibilities through communication, technical assistance, and capacity
building.

The Council consists of 47 members, elected directly and individually by the General Assembly
with membership based on equitable geographic distribution. Council members serve terms of three
years, with a limitation of no more than two consecutive terms. Procedures for Council membership are

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aimed at keeping countries with very poor human rights records off the Commission. Members must be
elected by an absolute majority of the General Assembly, requiring 96 votes in a secret ballot, rather
than a simple majority of General Assembly members present. The General Assembly also acts as a
check on the Council, with the ability to suspend Council members whose countries commit gross
human rights violations. The Council will meet no fewer then three times per year for at least ten weeks,
with the ability to hold special sessions when necessary. For now the Council will adopt the procedures
and responsibilities of the Human Rights Commission, but has a year to review and change them.

5.3.3 THE SECURITY COUNCIL

The Security Council’s mandate under article 24 of the UN Charter is the maintenance of
international peace and security. The fifteen-member body consists of 5 permanent and 10 elected
members. Nine votes are needed to approve any measures. Any of the five permanent members (China,
France, Russia, the United Kingdom, and the United States) can exercise their veto power to prevent
a given action from succeeding. The permanent membership of five countries, with their veto power, is
a clear concession to economic and military power within the Security Council. The Security Council
can issue binding decisions regarding international security or peace, authorize military interventions
and impose diplomatic and economic sanctions (Bailey 1994, Ramcharan 2002).

5.4 REGIONAL HUMAN RIGHTS SYSTEMS

Regional arrangements supplement the UN system by promoting and protecting human rights
in particular parts of the world. Three regions — Europe, the Americas, and Africa — have formulated
their own declarations and conventions for the protection and enforcement of human rights. Because of
their locations, regional agencies and courts have better chances of effectively investigating alleged
violations promptly and securing relief for victims. Regional agencies are also likely to be more attuned
to the culture and identity of the region and may accordingly have a deeper understanding of problems,
circumstances, and possible reforms.

5.4.1 THE EUROPEAN SYSTEM

The European Convention for the Protection of Human Rights (1950) demonstrated to the
world the possibility of enforcing internationally human rights norms. Article 3 of the Statute of the
Council of Europe requires member states to accept the principles of human rights and fundamental
freedoms within their jurisdictions. The Council even defines its post-1989 role as that of a “human
rights watchdog” for post-communist European countries. During its 57 year history, membership in the
Council of Europe has more than doubled-currently the Council has over 45 member states, 21 of
which are Central or Eastern European states.

The European Convention formulates human rights norms, legally binds member states to respect
these norms, and creates a system of adjudication and enforcement. The European Convention’s
commitment clause requires all member states to secure these fundamental rights to every person within
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their jurisdictions. The first section of the European Convention then sets forth the fundamental rights
covered in the convention, while the second section establishes the European Court of Human Rights.

The rights set forth in the European Convention are similar to the first twenty-one articles of the
Universal Declaration, covering standard civil and political rights. Social rights were treated in a sepa-
rate document, the European Social Charter. The European Convention defines its rights in greater
detail than the Universal Declaration. A good example of this is seen in the right to life. While the
Universal Declaration simply sets forth, “everyone has the right to life…,” the European Convention’s
formulation is far more specific, requiring a mens rea as a necessary condition for violation and defining
specific exceptions to this right.

The European system originally had both a Commission and a Human Rights Court to ensure
that member states fulfilled their human rights obligations. In 1998, the European Convention was
amended to abolish the Commission, expand and reorganize the Court, and make the Court a full-time
operation. Countries that ratify the European Convention agree to respect and implement a list of rights,
but they also agree to the investigation, mediation, and adjudication of human rights complaints. The
European Court of Human Rights, based in Strasbourg, France, is composed of one judge from each
participating state in the Council of Europe. The judges, however, are appointed as independent jurists
rather than as state representatives. Citizens from the participating countries with human rights com-
plaints who have been unable to find a remedy in their national courts may petition the European Court
of Human Rights. Complaints by governments about human rights violations in another participating
country are also permitted, but are rarely made. If the Court agrees to hear a complaint, it investigates
and adjudicates it. Before issuing a judgment, the Court attempts to mediate the dispute. If conciliation
fails, the Court will issue a judgment with supporting judicial opinions and impose a remedy. Through
this process a large body of international human rights jurisprudence has developed (Jacobs and White
1996; Janis, Kay and Bradley 1995).

Participating governments almost always accept the Court’s judgments. Compliance occurs
because governments are committed to the European Convention and to the rule of law, and because
their membership in good standing in the Council of Europe would be endangered were they to defy the
Court.

5.4.2 THE INTER-AMERICAN SYSTEM

The Organization of American States (OAS) is the oldest regional organization of states. In
1948, 21 states signed the OAS Charter, establishing the regional organization and affirming their
commitment to democracy, liberty, and equality before the law. One OAS principle, set forth in article
3 of the charter, is the “fundamental rights of the individual without distinction as to race, nationality,
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creed, or sex.” The Inter-American system consists of two main documents, the American Declaration
of the Rights and Duties of Man and the American Convention on Human Rights; and two main bodies,
the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. All
35 of the independent countries in the Americas currently comprise the Organization of American
States.

Even before the UN adopted the Universal Declaration, the Organization of American States
approved the American Declaration (1948). Like the Universal Declaration, the American Declaration
encompasses the entire range of human rights. Additionally, the declaration includes an explicit list of
duties, ranging from general duties toward society and one’s children, to an individual’s duty to vote,
work, and pay taxes (articles 29-38).

Despite its early beginnings, the Inter-American system of human rights progressed more slowly
than its counterparts. Not until 1969 did the OAS adopt the American Convention on Human Rights,
which entered into force in June of 1978. The Convention gave legal force to most of the rights established
in the American Declaration with a commitment clause requiring states to adopt legislative or other
measures necessary for full implementation of these rights. Similar to the European Convention on
Human Rights, the American Convention protects civil and political rights as well as property rights and
freedom from exile and collective expulsion for aliens. The Convention does not, however, cover social
rights. Those are found in the Protocol of San Salvador (1988). The American Convention is unique in
its inclusion of a right to seek asylum (Henkin 1999). To date, 25 of the 35 OAS member states have
adopted the Convention.

The Inter-American Commission on Human Rights was established in 1959 and conducted its
first investigation in 1961. The Commission is the first of two permanent bodies for promoting and
protecting human rights in the Americas and consists of seven members elected by the OAS General
Assembly who serve in their personal capacities.

The Commission’s main functions include investigating individual complaints and preparing reports
on countries with severe human rights problems. To this end the Commission is authorized to:

• Receive and investigate individual petitions regarding human rights violations

• Publish reports regarding human rights situations in member states
• Visit member states and investigate general human rights conditions or particular problem areas
• Publish studies on specific subject areas, such as indigenous rights and women’s rights
• Make human rights recommendations to member states
• Submit cases to, or request advisory opinions from the Inter-American Court of human rights.
In 1979 the OAS adopted the Statute of the Inter-American Court of Human Rights, officially
creating the Inter-American Court and defining its jurisdiction. The Court is authorized to interpret and
enforce the Convention. (Davidson 1997). The Court is composed of seven judges who serve a six
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year term in their individual capacity. Because judges serve in their individual capacity, the statute of the
court explicitly prohibits them from holding positions that are incompatible with a judicial position,
namely, positions in the executive branch of government, officials of international organizations. The
Court’s jurisdiction is limited to cases submitted by state parties and the Inter-American Commission
involving the interpretation or application of the American Convention. The Court generally holds public
hearings and delivers decisions in public sessions, ensuring its transparency. The Court issued its first
decision in 1980, and to date has issued over 65 decisions.
Thus far, the Commission has been a far more important actor than the Court in the implementation
of the American Convention (Farer 1997). The Commission’s jurisdiction is limited to individual cases
alleging a human rights violation by OAS member states. Currently the Commission is processing more
than 800 individual cases.
5.4.3 THE AFRICAN SYSTEM
The newest regional human rights system covers the countries of the African continent. In 2000
the Organization of African Unity tranformed itself into the African Union. The Constitutive Act whereby
this was accomplished reaffirmed Africa’s determination “to promote and protect human and peoples’
rights.” The African Union’s objectives include the promotion and protection of human rights in
accordance with the African Charter of Human and Peoples’ Rights and “other relevant human rights
instruments.” As of 2006 the African Union consists of 53 state parties.
The African Charter on Human and Peoples’ Rights was created in 1981 and entered into
force in 1986. This treaty obligates ratifying countries to recognize the rights and duties listed and to
adopt legislation or measures to bring them into effect (article 2). The African Charter is divided into
two parts. The first part sets forth rights and duties and the second part establishes safeguards for them.
Like the American Convention on Human Rights, the African Charter does not simply identify rights but
also explicitly imposes duties upon individuals (articles 27-29). These individual duties, included perhaps
to counter claims that human rights promote excessive individualism, consist of duties to family, society,
state, and the international community.
The African Charter explicitly posits group rights — the rights of peoples. Examples of such
rights include the right of a group to freely dispose of its natural resources in the exclusive interest of its
members (article 21), and the right of a colonized or oppressed group to free themselves from domination
(article 20).

The Charter created an African Commission on Human and Peoples’ Rights to promote and
ensure the protection of human and peoples’ rights in Africa. (article 30). The Commission meets twice
a year and consists of eleven members of the African community who serve six year terms in their
personal capacities. The functions of the Commission are the promotion of human rights, the protection
of these rights, interpretation of the African Charter, and the performance of “any other tasks” requested
by the AU” (article 45). The Commission is also authorized to perform studies regarding problems in
the area of human rights; formulate rules addressing human rights problems; investigate alleged human

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rights violations by any appropriate means; and prepare reports discussing human rights abuses; and
make recommendations to the AU Assembly (articles 45-54). Furthermore, states are required to
submit regular reports to the Commission on their human rights problems and efforts to address them
(article 62).

An African Court of Human and Peoples’ Rights is currently under construction.

The African system has enormous human rights problems to address, frequently faces non-
cooperation by governments, and has inadequate resources to play a major role (Evans and Murray
2002). But despite its limited legal and economic resources the African Union seems to be slowly
constructing international mechanisms to promote and protect human rights in Africa.

5.4.4 OTHER REGIONS

Other regions of the world have yet to establish transnational human rights systems. No regional
system exists in Asia, and the members of the League of Arab States have yet to ratify their Arab
Charter of Human Rights despite its adoption more than a decade ago.

5.5 THE INTERNATIONAL CRIMINAL COURT

Once human rights norms are established internationally, the question arises about what should
be done by way of punishment and accountability for political, military, and ethnic leaders who have
organized and carried out severe human rights violations. The International Criminal Court (ICC) is
designed to prevent impunity for human rights crimes, genocide, war crimes, and crimes against humanity.
The ICC was based on the models and experience of the Nuremberg Tribunal, the International Tribunal
for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.

The ICC was created in 1998 when 120 States adopted the Rome Statute of the International
Criminal Court setting forth the jurisdiction and functions of the Court. By April 11, 2002 the Rome
Statute obtained the requisite number of ratifications, and entered into force on July 1, 2002 (Broomhall
2003). Within fifteen months the state parties to the Rome Statute adopted the Rules of Procedure and
Evidence, Elements of Crimes, and Agreement on Privileges and Immunities, and elected the Court’s
18 judges (McGoldrick et al. 2004).

The ICC is intended to be complementary to States’ national systems for prosecuting war
crimes and human rights violations and its jurisdiction is limited to “the most serious crimes of concern
to the international community as a whole” (Rome Statute, article 1). The Statute sets forth the following
four crimes over which the ICC may exercise jurisdiction: (1) genocide; (2) crimes against humanity;
(3) war crimes; and (4) the crime of aggression against another state. The ICC may not, however,
exercise jurisdiction over crimes of aggression until members of the Court adopt a satisfactory definition
of the crime and set out conditions for the Court’s exercise of jurisdiction for this crime (article 5.2).
Until this is accomplished the ICC’s jurisdiction is limited to 1-3.

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 The Rome Statute creates an independent Office of the Prosecutor who is responsible for
receiving petitions, conducting investigations, and prosecuting the gravest international crimes (articles
34, 42). The Prosecutor may accept referrals made by State Parties or by the United Nations Security
Council, and may also accept information about crimes from individuals and nongovernmental
organizations. Furthermore, the ICC may only exercise its authority when either “the State in which the
crime was committed (the ‘territorial State’) or the State of which the accused is a national (the ‘State
of nationality’) is a party to the Statute or has specifically accepted the jurisdiction of the Court” (Cameron
2004).

The United States has refused to ratify the ICC, and it is unclear whether this will prevent the
ICC from being fully effective. Both the Clinton and George W. Bush administrations had reservations
about turning decisions to prosecute international crimes over to an independent prosecutor rather than
keeping such decisions within the Security Council. The underlying worry, no doubt, was that U.S.
officials and soldiers would be possible targets of politically motivated prosecutions.

5.6 PROMOTION OF HUMAN RIGHTS BY STATES

Perhaps the most important role that states play in international human rights law is in defining
and establishing that law by creating and ratifying human rights treaties. Treaties are generally authored
by committees of state representatives, and they are ratified by executive and legislative consent at the
national level. Once a treaty is established, states help give it life by creating domestic legislation to
implement it, conforming their conduct to its norms, and using it has a standard for domestic and
international evaluation and criticism.

Article 56 of the United Nations Charter obligates member states to take “joint and separate
action” for the achievement of United Nations purposes of observance of human rights and fundamental
freedoms for all. Individual efforts take several forms, including the incorporation of international human
rights documents into domestic law and state actions attempting to resolve human rights crises in other
countries.

Within a country, means of promoting international human rights include incorporating international
norms into a state’s constitution and criminal law; creating limits on federalism, such as subordinating
localities to the federal government; and, promoting human rights through propaganda and education.
Perhaps the most basic method is enforcement through law at the national level. For example, to
comply with the Genocide Convention a country must make genocide a crime within its own legal
system. Much international law is obeyed because its norms have been incorporated into the legal
systems of countries (Hathaway 2005). Since the end of the Cold War, numerous states have formulated
new or revised constitutions that include human rights. A sampling of these states includes Romania
(1991), Slovenia (1991), Congo (1992), Lithuania (1992), Albania (1993), Russian Federation (1993),
Moldova (1994), Tunisia (1995), Cameroon (1996), and Poland (1997) (Alston 1999).

A recent example of the incorporation in domestic law of international norms is found in the

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United Kingdom Human Rights Act of 1998. The Act protects rights similar to the ones in the European
Convention on Human Rights, including the right to life, liberty, security and a fair trial, and the prohibition
of torture, slavery, forced labor. Here the state uses its own internal legal system to enforce human
rights norms. A resident of the UK, instead of having to go to the European Court of Human Rights
located in Strasbourg, France, can bring a human rights claim to local courts or tribunals. By imposing
international and domestic obligations, self-enforcement measures ultimately serve as an in-house check
on governments to ensure compliance with their human rights obligations.

Another mechanism for state promotion of human rights is the creation of national human rights
commissions. Their functions include educating people on human rights, promoting human rights, and
advising local governments about human rights (Ramcharan 2005). Representatives of state commissions
may even participate in annual United Nations human rights sessions, enabling a state’s human rights
problems or successes to receive attention at the international level (Ramcharan 2005). Countries with
national human rights commissions include Australia, Canada, Fiji, India, Ireland, Mexico, Nepal, the
Philippines, and Uganda, to name a few.

States often take actions, unilaterally or together with other states, intended to promote and
protect human rights in other countries. For example, in the late 1990s Australia led the military effort to
restore peace and respect for human rights in East Timor. A new crisis erupted in 2006 and Australia,
Portugal, New Zealand, and Malaysia again sent troops to suppress the violence. States use diplomacy,
publishing reports and statements, conditioning access to trade or aid on human rights improvements,
economic sanctions, and military intervention to promote human rights in other countries.

Humanitarian intervention is the use of force by one state to prevent or stop gross human rights
violations and other humanitarian disasters in another state (Teson 2005). Obviously, military intervention
conflicts with the idea of non-intervention, a cornerstone of international law. Non-intervention discourages
the use of force against the political and territorial sovereignty of states, and in doing so promotes
international peace and security. Perhaps humanitarian intervention, like self-defense, is an exception to
the principle of non-intervention.

There is always the risk of a state pursuing its own foreign policy goals under the guise of
“humanitarian intervention.” This issue is currently being debated over the United States’ intervention in
Iraq (See Human Rights Watch: The War in Iraq: Not a Humanitarian Intervention; see also Teson
2005). War can be rationalized by calling it “humanitarian intervention” and emphasizing high-minded
motives.

Still, there are situations in which military intervention is the only possible means of ending a
consistent pattern of gross human rights violations. Humanitarian intervention relies on the presumption
that sovereign nations have an obligation to respect fundamental human rights. When state officials
perpetrate human rights crimes and the government fails to bring them to justice, the responsibility of the
international community is triggered. International organizations have been widely criticized for failing to
intervene early and decisively during the genocide in Rwanda
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 Efforts by states help to add real power to the international human rights system. The countries
of Western Europe, Canada, Australia, and the United States, have been the historic pillars of the
human rights establishment. They have lent their considerable support and clout to the system, keeping
it going during hard times and helping it expand and flourish in better times. Although they have human
rights problems of their own and have not always risen to the challenge of human rights emergencies,
they have sometimes provided military and peacekeeping forces at considerable cost to themselves in
money and lives. They have often worked closely with the Security Council in these efforts. They do
not, however, have a standing legal commitment to do this, except their commitment under the UN
Charter to support the actions of the Security Council.

5.7 NON GOVERNMENTAL ORGANIZATIONS

Non governmental organizations such as Human Rights Watch and Doctors without Borders
are extremely active at the international level in the areas of human rights, war crimes, and humanitarian
aid. Nongovernmental organizations (NGOs) allow for collaborations between local and global efforts
for human rights by “translating complex international issues into activities to be undertaken by concerned
citizens in their own community” (Durham 2004). The functions of international NGOs include investigating
complaints, advocacy with governments and international governmental organizations, and policy making.
Local activities including fundraising, lobbying, and general education (Durham 2004).

Although they do not have the authority to implement or enforce international law, NGOs have
several advantages to state organizations in the human rights system. Much of their work includes
information processing and fact finding, in which NGOs educate people about their human rights and
gather information regarding human rights abuses in violating countries (Claude 1992, Durham 2004).
In this process NGOs have the benefit of access to local people and organizations and are often able to
get direct and indirect access to critical information about current human rights violations (Durham
2004). Once they gather information, NGOs can design campaigns to educate the international community
of these abuses.

A key function of NGOs is advocacy — urging support for human rights and attempting to
influence governments or international groups with regard to specific actions. Advocacy involves
education, persuasion, public exposure, criticism and provoking specific responses to human rights
abuses (Claude 1992). Representatives of NGOs are seen everywhere in the international human rights
system. Many international human rights NGOs attend and often participate in the meetings of UN
human rights bodies (Claude 1992). They provide information about human rights situations through
their reports and testimony. They shape the agendas, policies, and treaties of the UN through participation
and lobbying (Korey 1998). Notable examples include NGO involvement in the development of the
Universal Declaration of Human Rights and the UN Declaration on Torture and Other Cruel, Inhuman
or Degrading Treatment (Claude 1992).

NGOs with affiliates around the world include Amnesty International, Human Rights Watch,

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the International Commission of Jurists, the International Federation of Human Rights, Minority Group
Rights, Doctors without Borders, and Oxfam. Besides these high profile NGOs there are thousands of
local and national organizations working on human rights issues. For a comprehensive list of such
organizations see Non-governmental Organizations Research Guide

5.8 THE FUTURE OF HUMAN RIGHTS LAW

A person who has read the foregoing account of human rights law may wonder whether it has
made any difference. If so much international human rights law exists, why is the world such a mess?

A simple answer with much truth in it is that the world’s human rights problems are large and
deeply entrenched, and that human rights law and organizations are, by comparison, not very strong —
particularly within the United Nations. Countries with the worst human rights records often do not much
participate in the UN system (for example, one forth of the world’s countries have not ratified the Civil
and Political Covenant), and many others participate in a formal and hypocritical way.

Regional systems, particularly in Europe and the Americas, do somewhat better. They have
their own human rights courts, are more powerful, and enjoy more serious and sincere participation by
many (but not all) of their members.

The first 50 years of the human rights movement were handicapped by the Cold War. With that
handicap removed, the 1990s were a period of growth and improvement in human rights law and
institutions. The period since 2001 has seen a preoccupation with terrorism that has taken much attention
and energy away from other human rights problems.

Success in promoting human rights requires hard-to-achieve success in other areas including
building more capable, responsive, efficient, and non-corrupt governments, dealing with failed states,
increasing economic productivity (to pay for the protections and services that human rights require),
improving the power and status of women, improving education, and managing international tensions
and conflicts. Realizing human rights worldwide is a project for centuries, not decades.

Still, there are some grounds for optimism. Human rights are more widely accepted than they
have ever been. They have become part of the currency of international relations, and most countries
participate in the human rights system. Treaty arrangements help encourage and pressure countries to
deal with their human rights problems. The human rights project continues and has not failed.

International criminal law is an autonomous branch of law which deals with international crimes
and the courts and tribunals set up to adjudicate cases in which persons have incurred international
criminal responsibility. It represents a significant departure from ‘classical’ international law which was
mainly considered law created by states for the benefit of states, but tended to ignore the individual as
a subject of the law.

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HISTORY
Some precedents in international criminal law can be found in the time before the First World
War. However, it was only after the war that a truly international criminal tribunal was envisaged to try
perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international
tribunal was to be set up to try Kaiser Wilhelm II of Germany. In the event however, the Kaiser was
granted asylum in the Netherlands. After the Second World War, the Allied powers set up an international
tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The
Nuremberg Tribunal held its first session on 20 November 1945 and pronounced judgments on 30
September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The
International Military Tribunal for the Far East). It operated from 1946 to 1948.
After the beginning of the war in Bosnia, the United Nations Security Council established the
International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in
Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission
had commenced preparatory work for the establishment of a permanent International Criminal Court in
1993; in 1998, at a Diplomatic Conference in Rome, the Rome Statute establishing the ICC was
signed. The ICC issued its first arrest warrants in 2005.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 1.
All human beings are born free and equal in dignity and rights.They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.

Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction
of any kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Furthermore, no distinction shall be made on the
basis of the political, jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under any other limitation
of sovereignty.

Article 3.
Everyone has the right to life, liberty and security of person.

Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all
their forms.

Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punish-
ment.
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Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of
the law. All are entitled to equal protection against any discrimination in violation of this Decla-
ration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for
his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did
not constitute a penal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspon-
dence, nor to attacks upon his honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks.

Article 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each
state.
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 (2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-
political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.

Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have
the right to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes free-
dom to change his religion or belief, and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief in teaching, practice, worship and obser-
vance.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.

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Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be
expressed in periodic and genuine elections which shall be by universal and equal suffrage
and shall be held by secret vote or by equivalent free voting procedures.

Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international co-operation and in accordance with the organizationand
resources of each State, of the economic, social and cultural rights indispensable for his dignity
and the free development of his personality.

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself
and his family an existence worthy of human dignity, and supplemented, if necessary, by
other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and
periodic holidays with pay.

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.

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 (2) Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same social protection.

Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally acces
sible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote un
derstanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their
children.

Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the
arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from
any scientific, literary or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth
in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his
personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

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Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the destruction of any of the rights
and freedoms set forth herein.

SUMMARY
On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed
the Universal Declaration of Human Rights. Following this historic act the Assembly called upon all
Member countries to publicize the text of the Declaration and “to cause it to be disseminated, displayed,
read and expounded principally in schools and other educational institutions, without distinction based
on the political status of countries or territories.”
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world.

Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy
freedom of speech and belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people.

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to

rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
Whereas it is essential to promote the development of friendly relations between nations.
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal rights of men
and women and have determined to promote social progress and better standards of life in larger
freedom.

Whereas Member States have pledged themselves to achieve, in co-operation with the United
Nations, the promotion of universal respect for and observance of human rights and fundamental
freedoms.

Whereas a common understanding of these rights and freedoms is of the greatest importance
for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL

DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and
all nations, to the end that every individual and every organ of society, keeping this Declaration constantly
in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by
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progressive measures, national and international, to secure their universal and effective recognition and
observance, both among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.

QUESTIONS:

1. What is an International Human Rights Law and what are its concepts?
2. Describe the norms of International Human Rights Law?
3. What are the fundamental human rights according to Rawl?
4. What are the rights that are Human Rights?
5. What are Civil and Political Rights?
6. Write notes on
(a) Social Rights
(b) Minority and Group Rights

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 CHAPTER - VII
INSTITUTIONS OF INTERNATIONAL
CRIMINAL LAW

O BJECTIVE
Today, the most important institution is the International Criminal Court as well as several ad
hoc tribunals:
∗ The International Criminal Tribunal for the Former Yugoslavia
∗ The International Criminal Tribunal for Rwanda.

Apart from these institutions, some ‘hybrid’ courts and tribunals exist - judicial bodies in which
both international and national judges are represented. Examples are the Extraordinary Chambers for
Cambodia (investigating the crimes of the Pol Pot era) and the war crimes court at Kosovo

WAR CRIME
In the context of war, a war crime is a punishable offense under International Law, for violations
of the laws of war by any person or persons, military or civilian. Every violation of the law of war in an
inter-state conflict is a war crime, while violations in internal conflicts are typically limited to the local
jurisdiction. In essence, the term “war crime” represents the concept of an international jurisdiction as
applicable to the most severe crimes, in areas where government is dysfunctional and society is in a
state of turmoil.

The article “list of war crimes” summarizes war crimes committed since the Hague Conventions
of 1907. In addition, those incidents which have been judged in a court of law to be Crimes Against
Peace and Crimes against Humanity that have been committed since these crimes were first defined (in
the London Charter, August 8, 1945) are also included.

The article “list of war criminals” is a list of war criminals as according to the conduct and rules
of warfare as defined by the Nuremberg Trials following World War II as well as earlier agreements
such as Hague Conferences of 1899 and 1907, the Kellogg-Briand Pact of 1928, and the Geneva
Conventions of 1929 and 1949.

CRIMES
War crimes include violations of established protections of the laws of war, but also include
failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of
truce, or using that same flag as a ruse of war to mount an attack. It has been incorrectly reported that
“Another good example is attacking enemy troops while they are being deployed by way of a para-
chute”. However, Protocol I, Art.42 of the Geneva Conventions forbids attacking parachutists who
eject from damaged airplanes, and surrendering parachutists once landed, but specifically excludes

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airborne troops from protection. The definition of the term “war crime” usually varies between trials to
convict the defendants with a more specific crime that they may have committed.

It comprises such acts as mistreatment of prisoners of war or civilians. War crimes are some-
times part of instances of mass murder and genocide though these crimes are more broadly covered
under international humanitarian law described as crimes against humanity.

War crimes are significant in international humanitarian law because it is an area where interna-
tional tribunals such as the Nuremberg Trials have been convened. Recent examples are the Interna-
tional Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda,
which were established by the UN Security Council acting under Chapter VII of the UN Charter.

Under the Nuremberg Principles, the supreme international crime is that of commencing a war
of aggression, because it is the crime from which all war crimes follow. The definition of such a crime is
planning, preparing, initiating, or waging a war of aggression, or a war in violation of international
treaties, agreements, or assurances. Also, participating in a common plan or conspiracy for the accom-
plishment of any such act constitutes such a crime.

INTERNATIONAL CRIMINAL COURT

On July 1, 2002, the International Criminal Court, a treaty based court located in The Hague,
came into being for the prosecution of war crimes committed on or after that date. However, several
nations, most notably the United States, China, and Israel, have criticized the court, refused to partici-
pate in it or permit the court to have jurisdiction over their citizens. Note, however, that a citizen of one
of the ‘objector nations’ could still find himself before the Court if he were accused of committing war
crimes in a country that was a state party, regardless of the fact that their country of origin was not a
signatory.

DEFINITION
War crimes are defined in the statute that established the International Criminal Court, which
includes:

1. Grave breaches of the Geneva Conventions, such as:

Ü Willful killing, or causing great suffering or serious injury to body or health

Ü Torture or inhumane treatment
Ü Unlawful wanton destruction or appropriation of property
Ü Forcing a prisoner of war to serve in the forces of a hostile power
Ü Depriving a prisoner of war of a fair trial
Ü Unlawful deportation, confinement or transfer
Ü Taking hostages
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 2. The following acts as part of an international conflict:

Ü Directing attacks against civilians

Ü Directing attacks against humanitarian workers or UN peacekeepers
Ü Killing a surrendered combatant
Ü Misusing a flag of truce
Ü Settlement of occupied territory
Ü Deportation of inhabitants of occupied territory
Ü Using poison weapons
Ü Using civilian shields
Ü Using child soldiers
3. The following acts as part of a non-international conflict:

Ü Murder, cruel or degrading treatment and torture

Ü Directing attacks against civilians, humanitarian workers or UN peacekeepers
Ü Taking hostages
Ü Summary execution
Ü Pillage
Ü Rape, sexual slavery, forced prostitution or forced pregnancy

However the court only has jurisdiction over these crimes where they are “part of a plan or
policy or as part of a large-scale commission of such crimes”

PROMINENT INDICTEES
To date, the former heads of state and heads of government that have been charged with war
crimes include Karl Dönitz of Germany, ex Prime Minister Hideki Tojo of Japan and former Liberian
President Charles G. Taylor. Former Yugoslav President Slobodan Miloševiæ was brought to trial for
war crimes, but died before the trial could be concluded. Former Iraqi President Saddam Hussein is
accused of committing war crimes and was sentenced to death by hanging on 5 November 2006.

AMBIGUITY
The Geneva Conventions are a treaty that represents a legal basis for International Law with
regard to conduct of warfare. Not all nations are signatories to the GC, and as such retain different
codes and values with regard to wartime conduct. Some signatories have routinely violated the Geneva

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Conventions in a way which either uses the ambiguities of law or political maneuvering to sidestep the
laws formalities and principles.

Because the definition of a state of “war” may be debated, the term “war crime” itself has seen
different usage under different systems of international and military law. It has some degree of applica-
tion outside of what some may consider being a state of “war,” but in areas where conflicts persist
enough to constitute social instability.

In determining the legality of acts committed during war, favoritism toward states that were
winners in wars has sometimes been alleged, and it is sometimes stated: “History is winners’ history”,
since certain actions perpetrated by states that were the “winners” have not been ruled as war crimes.
Some examples include the United States’ destruction of civilian targets through the use of atomic
bombs on Hiroshima and Nagasaki and mass firebombing attacks on Axis cities such as Tokyo, Kobe,
and Dresden in World War II. Others cite the Indonesian occupation of East Timor between 1976 and
1999.
In areas where International Law is yet unresolved, some ambiguity remains with regard to
which crimes are considered as such and which are not.

CRIME AGAINST HUMANITY

A crime against humanity is a term in international law that refers to acts of persecution or any
large scale atrocities against a body of people, as being the criminal offence above all others.

The Rome Statute Explanatory Memorandum states that crimes against humanity “are particu-
larly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a
degradation of one or more human beings. They are not isolated or sporadic events, but are part either
of a government policy (although the perpetrators need not identify themselves with this policy) or of a
wide practice of atrocities tolerated or condoned by a government or a de facto authority. However,
murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts
reach the threshold of crimes against humanity only if they are part of a widespread or systematic
practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or
depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the
category of crimes under discussion.”

FIRST USE
On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement
explicitly charging for the first time ever another government of committing “a crime against humanity”.
This joint statement stated:

“In view of these new crimes of Turkey against humanity and civilization, the Allied Govern-
ments announce publicly to the Sublime Porte that they will hold personally responsible for
these crimes all members of the Ottoman Government, as well as those of their agents who are
implicated in such massacres”.
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NUREMBERG TRIALS
The London Charter of the International Military Tribunal was the decree that set down the
laws and procedures by which the post World War II Nuremberg trials were to be conducted. The
charter defined that only crimes of the European Axis Powers could be tried. Article 6 stated that the
Tribunal was established for the trial and punishment of the major war criminals of the European Axis
countries;

Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the war; or persecu
tions on political, racial or religious grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the
country where perpetrated.

In the Judgment of the International Military Tribunal for the Trial of German Major War Crimi-
nals it was stated:

The Tribunal therefore cannot make a general declaration that the acts before 1939 were
crimes against humanity within the meaning of the Charter, but from the beginning of the war in
1939 war crimes were committed on a vast scale, which were also crimes against humanity;
and insofar as the inhumane acts charged in the Indictment, and committed after the beginning
of the war, did not constitute war crimes, they were all committed in execution of, or in connec
tion with, the aggressive war, and therefore constituted crimes against humanity.

APARTHEID
The systematic persecution of one racial group by another, such as occurred during the South
African apartheid government, was recognized as a crime against humanity by the United Nations in
1976.

THE INTERNATIONAL CRIMINAL COURT

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands)
and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity
and war crimes. Article 7 of the treaty stated that:

For the purpose of this Statute, “crime against humanity” means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

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 (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any
act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.

Crimes against humanity are particularly odious offences in that they constitute a serious attack
on human dignity or grave humiliation or a degradation of one or more human beings. They are not
isolated or sporadic events, but are part either of a government policy (although the perpetrators need
not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a
government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or
religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they
are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute
grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short
of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an
individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences
mentioned above, or engages in one such offence against only a few civilians, provided those offences
are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for
example, because they engage in armed action on the same side or because they are parties to a
common plan or for any similar reason.) Consequently when one or more individuals are not accused of
planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious
acts, in order to determine whether the necessary threshold is met one should use the following test: one
ought to look at these atrocities or acts in their context and verify whether they may be regarded as part
of an overall policy or a consistent pattern of a inhumanity, or whether they instead constitute isolated or
sporadic acts of cruelty and wickedness.

UN SECURITY COUNCIL RESPONSIBILITY

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28
April 2006, “reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome

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Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleans-
ing and crimes against humanity”. The resolution commits the Council to action to protect civilians in
armed conflict.

COUNCIL OF EUROPE
The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommenda-
tion to the member states, on the protection of women against violence. In the section “Additional
measures concerning violence in conflict and post-conflict situations”, states in paragraph 69 that mem-
ber states should: “penalise rape, sexual slavery, forced pregnancy, enforced sterilisation or any other
form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes
against humanity and, when committed in the context of an armed conflict, as war crimes;”

In the Explanatory Memorandum on this recommendation when considering paragraph 69:

Reference should be made to the Statute of the International Criminal Tribunal adopted in
Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity, as crimes
against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitu-
tion, forced pregnancy, enforced sterilisation or any other form of sexual violence as a serious breach of
the Geneva Conventions and as war crimes.

To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be
“part of a widespread or systematic attack directed against any civilian population”. Article 7.2.a states
“For the purpose of paragraph 1: “Attack directed against any civilian population means a course of
conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian popu-
lation, pursuant to or in furtherance of a State or organizational policy to commit such attack.” This
means that an individual crime on its own, or even a number of such crimes, would not fall under the
Rome Statute unless they were the result of a State policy or an organizational policy. This was con-
firmed by Luis Moreno-Ocampo in an open letter publishing his conclusions about allegations of crimes
committed during the invasion of Iraq in March 2003 which might fall under the ICC. In a section
entitled “Allegations concerning Genocide and Crimes against Humanity” he states that “the available
information provided no reasonable indicia of the required elements for a crime against humanity, i.e. ‘a
widespread or systematic attack directed against any civilian population’.

INFLUENCE ON THE ARTS

• The Interpreter, film about a character apparently based on Robert Mugabe of Zimbabwe
seeking to avoid indictment by the UN Security Council for trial before the International Crimi-
nal Court on charges of crimes against humanity.

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SUMMARY
A recognizable body of international criminal law does exist. However, the precise parameters
of this body of law are often unclear, perhaps due to the rapid and complex developments of our global
society. In its widest context, the source of international criminal law might be derived from the general
principles of international law recognized by civilized nations; and therefore, found in the customary law
accepted by states, the general criminal law recognized by nations, and the treaties which govern
particular conduct.

International criminal law can also be categorized according to whether the conduct in question
is international, constituting an offense against the world community, or whether the act is transnational,
affecting the interests of more than one state. For example, international crime would encompass acts
that threaten world order and security, crimes against humanity and fundamental human rights, war
crimes, and genocide; whereas the transnational crime category would include drug trafficking,
transborder organized criminal activity, counterfeiting, money laundering, financial crimes, terrorism,
and willful damage to the environment.

International criminal law is an autonomous branch of law which deals with international crimes
and the courts and tribunals set up to adjudicate cases in which persons have incurred international
criminal responsibility. It represents a significant departure from ‘classical’ international law which was
mainly considered law created by states for the benefit of states, but tended to ignore the individual as
a subject of the law.

Some precedents in international criminal law can be found in the time before the First World
War. However, it was only after the war that a truly international criminal tribunal was envisaged to try
perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an interna-
tional tribunal was to be set up to try Kaiser Wilhelm II of Germany. In the event however, the Kaiser
was granted asylum in the Netherlands. After the Second World War, the Allied powers set up an
international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi
regime. The Nuremberg Tribunal held its first session on 20 November 1945 and pronounced judg-
ments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes
(The International Military Tribunal for the Far East). It operated from 1946 to 1948.

After the beginning of the war in Bosnia, the United Nations Security Council established the
International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in
Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission
had commenced preparatory work for the establishment of a permanent International Criminal Court in

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1993; in 1998, at a Diplomatic Conference in Rome, the Rome Statute establishing the ICC was
signed. The ICC issued its first arrest warrants in 2005.

QUESTIONS:
1. What is a War Crime?
2. What do you understand by “List of war crime” and “List of war criminals”?
Give recent examples of international tribunal that have been convened for war Crimes?
3. Define Nuremberg Principles?
4. Describe International Criminal Court?
5. Write Short notes on
(a) Prominent Indictees
(b) Geneva Conventions
(c) First Use

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 MODEL QUESTION PAPER

National Institute of Business Management

Chennai - 020

SECOND SEMESTER EMBA/MBA

Subject : International Law

Time : 3 hours Marks : 100

Section A
I Answer all questions. Each question carries 2 marks :-
1. What is WTO?
2. Define Political Philosophy.
3. What is Legislature and Judiciary?
4. Define Criminal Law.
5. What is International Court of Justice?
5x2=10 marks
Section B

II Answer all questions. Each question carries 6 marks :-

1. Describe the origin of International Law.
2. What is GATT? Who replaced GATT? Discuss the integrated and distinctive legal
order of WTO.
3. What do you understand by Country of Origin?
4. In global economy international law is referred to three things. What are they? Explain.
5. Write short notes on:
(a) Contract (b) Tort
(c) Property Law (d) Trusts and Equity
5x6=30 marks

Section C

III Answer any three questions. Each question carries 20 marks :-

1. Explain the principles of International Law.
2. Describe the link between the legal system of the WTO and the legal system of
other International Organizations.
3. Deduce a brief history of law, its philosophy, economics, sociology and legal
institutions.
4. Which Rights are Human Rights. Explain in brief.
5. Are Social Rights genuine human rights?
3x20=60 marks

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