International law 2

4. The individuals and other actors on the rise

It has been a long time since international law was merely a legal order that gave states rights and obligations. International law is ultimately for the individuals, not for the states. Today, human rights protect the fundamental rights of individuals . Individuals can also be held accountable for the most serious crimes against other people in international criminal courts. Some of the fundamental human rights are considered to have a higher status than the rest of international law, and they can be enforced by all states in the event of a violation. This development towards better protection for individuals is often called a humanization of international law .

But in a more complex and globalized world, new questions arise as to who should be given rights and obligations. Multinational (transnational) companies have protection through investment agreements entered into between the states. In the negotiations on a new free trade agreement (TTIP) across the North Atlantic, one difficult point is how strong protection companies must be given for their investments in cases where a state wants to change its policy in an area. But why should such companies only have rights, and not obligations, in international law?

5. International law is threatened

There has long been a positive development in international law with increased protection of fundamental values ​​and more efficient management. But international law is threatened . The fight against terrorism undermines both the UN Charter’s ban on the use of military force between states and the protection of human rights. Russia’s intervention in Crimea is linked to growing nationalism. Uncontrolled migration challenges the protection of the Refugee Convention and the human rights conventions. Measures that in principle have a positive purpose, such as “responsibility to protect” (R2P – responsibility to protect ), can also hurt worse.

According to simplyyellowpages, R2P says that in cases where a state is behind massive abuses against its own population, or fails to prevent such, the international community has a responsibility to intervene and protect the civilians. The bombing of Libya, for example, has exacerbated the security climate in the Security Council and made it impossible to intervene effectively in the Syrian conflict. In Libya , what was apparently a humanitarian intervention with a UN mandate turned into an operation for regime change . The latter was not in the UN mandate.

This raises the question of whether one should today limit oneself to defending what has been gained so far in international law, or whether one should take a more offensive stance and advocate further development. Probably one should do both: protect what has been won and build on where cooperation has fallen short, for example in the international climate regime .

6. International law is different from politics and it must be interpreted

There are clear connections between international law and politics. Agreements in the form of treaties and conventions are created after fierce political tug-of-war , not least because the states know that the treaties will regulate and tame their freedom of action. Strong states can more easily force through a state practice that forms the basis for customary international law. And such states can more easily control international intergovernmental organizations.

But at the same time, international law is not the same as politics. International law has its basis in treaties and customary international law, and must be interpreted on the basis of recognized legal methods. International law is a tool for implementing policy , but at the same time sets limits on which political actions are permitted.

7.International law must be interpreted

International law is an “open” legal system that allows for interpretation . In fact, great transparency and poorly detailed wording are often a prerequisite for an agreement to be reached at all. We therefore have a battle over interpretation .
But it is not the case that “anything goes” – that everything can pass. A too broad (expansive) interpretation undermines the authority of international law – like those who say that everything is politics.
Historically, we find two extremes in international law:

  • the natural lawway of thinking, which based the interpretation on eternal truths and reason
  • positivism, which is based only on “positive” sources of law, such as state agreements and practices.

We find traces of both of these two directions today. International law is found in positive legal sources such as treaties , customary international law , decisions of international bodies and international case law . At the same time, it is relevant to take into account fundamental values ​​that are recognized in the world community.

International law 2