Public international law (commonly referred to as ‘international law’) governs relationships between and among entities with international legal personality: sovereign states and other international actors, such as inter-governmental organisations and individual natural persons. The legal personality attributed to these entities means that they have rights, protections, responsibilities and liabilities under international law.
What are the sources of international law?
There are four significant sources of international law, identified in Article 38 of the Statute of the International Court of Justice (ICJ):
- International conventions (treaties) establish written rules that are binding on states that have signed and ratified the conventions. Treaties are contractual in nature, between and among states, and governed by international law.
- International custom establishes unwritten rules that are binding on all states, based on general practice. Their binding power is based on implied consent, evidenced by (a.) virtually uniform state practice over time and (b.) a belief that such practice is a legal obligation (opinio juris). Thus, for rules to become part of international customary law, states must follow them, not out of convenience or habit, but because they believe they are legally obligated to do so.
- General principles of law recognised by civilised nations include peremptory norms (jus cogens), from which no derogation is allowed – for example, the principles contained in the United Nations Charter that prohibit the use of force except in self-defence. There is ongoing debate, however, about which particular rules have achieved jus cogens status.
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations are subsidiary means for the determinations of rules of law. While court decisions and scholarly legal work are not sources of international law, they are considered important in recognising the law and interpreting and developing the rules sourced in treaties, custom and the general principles of law.
The first three of the above are recognised as the most important and well-established sources of international law. However, some states, academics and jurists highlight that court judgements, the ICJ’s advisory opinions and UN General Assembly Resolutions (often classified as ‘soft law’) are becoming increasingly influential in the development of the law. In particular, it is argued that they play a role in the establishment of customary international law. For example, the ICJ’s decisions that certain treaty provisions in international humanitarian law have the status of customary international law have sometimes led states not party to the treaty to view themselves as bound to comply with its obligations (Alvarez-Jiménez, 2011). In addition, the ICJ noted in its 1996 advisory opinion regarding the Legality of the Threat or Use of Nuclear Weapons that General Assembly resolutions, while not binding, may provide evidence for establishing the existence of a rule or the emergence of opinio juris, required for international custom (Prost and Clark, 2006).
What disciplines of international law are relevant to humanitarian assistance?
International humanitarian law (IHL) is the discipline of international law that is inspired by considerations of humanity and the mitigation of human suffering. It comprises a set of rules, established by treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice. It has informed the development of humanitarian principles in the provision of humanitarian assistance. See this guide’s sections Overview of IHL and Humanitarian Principles and Humanitarian Assistance. The latter looks at IHL provisions pertinent to the protection of civilians and the delivery of humanitarian assistance.
International human rights law (IHRL) comprises a set of rules, established by treaty or custom, that outlines the obligations and duties of states to respect, protect and fulfil human rights. It enables individuals and groups to claim certain behaviour or benefits from government. As will be discussed in the section on Overlapping Areas of Law, IHRL contains a number of provisions relevant to humanitarian assistance, including the right to life, the rights to food and water, the rights to essential medications, medical care and sanitation, the rights to adequate clothing and other necessities, and the rights to equality and non-discrimination. Displaced persons who remain within the borders of their own country (referred to as internally displaced persons – IDPs) are not protected by international refugee law. However, they can benefit from IHRL and IHL in the case of an armed conflict. The guiding principles on internal displacement are a set of non-binding international standards, drawn largely from human rights standards, developed to provide protection and assistance to IDPs.
International refugee law encompasses a set of rules, established by treaty or custom, with the aim of providing protection and assistance to individuals who have crossed an international border and are at risk or victims of persecution in their country of origin. This guide’s section on Overlapping Areas of Law will discuss the links between IHL, IHRL and the protection of refugees and IDPs.
International criminal law (ICL), a relatively new body of law, prohibits certain categories of conduct viewed as serious atrocities (primarily war crimes, crimes against humanity and genocide) and seeks to hold accountable individual perpetrators of such conduct. It functions through international ad hoc tribunals, mixed tribunals, the International Criminal Court and national courts. ICL will be discussed in Overlapping Areas of Law and in Compliance with and Enforcement of Humanitarian Law.
International disaster response laws, rules and principles (IDRL) is new area of focus aimed at expanding the international humanitarian framework to cover humanitarian assistance to populations in the context of natural disasters. It aims to facilitate humanitarian assistance to persons that do not benefit from the protections of IHL, relevant only in situations of armed conflict. The rules of IDRL are not based on a core treaty (or core treaties) but are derived from a broad range of sources – treaties, resolutions, declarations, codes, guidelines, protocols and procedures. The system is complex and fragmented, but some common themes have emerged: see the section on The Emergence of International Disaster Response Laws, Rules and Principles.
Why is international law important to humanitarian actors?
The existence of different disciplines and sources of international law relevant to humanitarian protection and assistance results in a comprehensive framework applicable to a range of circumstances. International humanitarian law has provided the basis for core humanitarian principles, such as humanity and impartiality. It can thus provide insight into, or add weight to, the principles of humanitarian assistance on which humanitarian actors rely. Such actors include not only direct providers of assistance but also local groups and communities advocating to obtain better assistance.
Many of the problems addressed in IHL treaties continue to reflect the concerns faced by humanitarian actors today. For example, IHL has addressed concerns over skewing the power balance in an armed conflict through the diversion and/or misuse of humanitarian assistance by parties to the conflict. Constrained access to populations in need in situations of armed conflict also remains a key challenge. Negotiations and arguments for access may be strengthened by reference to the specific international legal obligations of the parties to the conflict to permit access (whether based on IHL, IHRL or other disciplines of international law). These various provisions will be discussed in Humanitarian Principles and Humanitarian Assistance. An understanding of the different legal disciplines and their relevance and applicability to the particular situation enables stronger positions and advocacy for protection and assistance for populations in need. The success of such legal strategies is, however, context-specific and dependent on various other factors.