Sources

National and international law have three different sources:

• Written texts: These are drafted and adopted by legitimate authorities responsible for enforcing the rule of law. In domestic law they have different names, such as statutes, regulations, ordinances, or decrees. In some countries these texts may include religious writings. In international law, these rules are usually set forth in international conventions.
• Judicial precedents ( stare decisis*):* This encompasses the judgments rendered by legally established courts that apply and interpret existing legal rules for each individual case. International tribunals contribute to the creation of an international body of jurisprudence.
• Custom: This is a general and consistent practice accepted as law. Not all rules are written, and certain societies function mainly on the basis of customary law, which is defended in litigious cases before the courts and then becomes case law. International law leaves a great deal of room for customary law, basing itself on the repeated and accepted behavior of States ( opinio juris ).

International actors therefore have a great responsibility in defending international law and ensuring its evolution since, if a rule is not upheld in practice, it is weakened and may even disappear. On the other hand, if the behavior of international actors is regular and coherent, it contributes to the establishment of new standards and laws. International law gives NGOs a right of initiative in humanitarian matters, which gives them a share of the responsibility for the evolution of custom in this field.

Hierarchy of Norms

The many different rules and regulations that exist have a varying force or status of law, depending on the legal body and procedure by which they were adopted. In each situation, it is therefore important to compare the different applicable laws according to the official hierarchy of norms. If there is a contradiction between two principles of law, the one that has a higher legal authority prevails.

Nonetheless, certain rules—including unwritten ones—must prevail in all circumstances. Historically, this fact was reflected in the tension between the proponents of “natural law” (a right based on moral or religious values) on the one hand and proponents of “positive law” (a written right that represents the free will of the majority of States (for international law) or citizens (for domestic law) on the other. Today, most States and legal systems recognize the existence of peremptory norms, known as jus cogens .

▸ Hierarchy of norms ▸ Natural law, religious law and positive law

Interpretation

Laws may be interpreted according to certain well-defined principles. These include:

• the spirit of the law (meaning the intent of the legislator or drafter),
• the coherence between the interpretation of a law and its objectives, and
• good faith.

Each rule of law is subject to different interpretations.

In the context of international law, it may be that no court exists that can rule on such questions of law. NGOs must monitor the implementation of international human rights and humanitarian law so as to ensure that States do not interpret them in unilateral or abusive ways. The Vienna Convention on the Law of Treaties set up the rules according to which international conventions must be interpreted. The International Court of Justice also has a role to play when judging cases in which States disagree on the interpretation of an international convention. Indeed, the ICJ has recently recalled that

according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Article 32 provides that: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 . . . leaves the meaning ambiguous or obscure; or . . . leads to a result which is manifestly obscure or unreasonable. ( Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, p. 136, para. 94—infra Jurisprudence)

▸ International conventions

Implementation

International law applies in a different manner on the territory of States concerned. Some clauses are precise enough to be “self-executing,” and therefore an individual can invoke these norms directly before domestic courts. Many provisions, on the other hand, are “non-self-executing,” meaning that the rules or procedures must be incorporated into national legislation before an individual may have recourse to such laws. This is particularly the case for issues of international criminal law, and even more so with regard to the prosecution of war crimes and crimes against humanity.

Sanctions

Courts impose sanctions for breaches of the law. The aim of the sanction is to reestablish public order and to compensate victims.

In the international order, the role of the judiciary was very limited for a long time. Since the end of the Cold War, however, it has shown important development. Two permanent international tribunals currently exist. The International Court of Justice is responsible for prosecuting States that violate their international obligations. However, it has no jurisdiction over criminal matters, cannot judge individuals, and can only judge States with their consent. The Statute of the International Criminal Court was adopted in Rome in 1998 and entered into force on 1 July 2002. Its mandate is to prosecute those responsible for war crimes, crimes against humanity, and genocide. There are also two ad hoc International Criminals Tribunals responsible for prosecuting those who committed crimes in the former Yugoslavia and Rwanda (respectively established by the UN Security Council in 1993 and 1994).

Besides being sanctioned by judicial mechanisms, specific behavior that threatens international peace and security may be sanctioned by the UN Security Council. Chapter VII of the UN Charter foresees the possibility of imposing diplomatic, economic, and military sanctions on States or non-states actors (individuals, political parties, belligerents). These measures include embargoes, restricting or interrupting economic or diplomatic relations, freezing of assets, and bans on travel, as well as recourse to international armed force.

▸ International Criminal Court ▸ International Criminal Tribunals ▸ Universal jurisdiction

• At the regional level, three courts may judge States violating human rights: the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human and People’s Rights (which will merge with the African Court of Justice when the Protocol on the Statute of the African Court of Justice and Human Rights, adopted in 2008, enters into force).
• At the national level, those who committed serious breaches of humanitarian law (war crimes, crimes against humanity) may—under certain circumstances—be prosecuted by any domestic court, according to the universal jurisdiction principle. There are also non-judicial bodies to which individuals or other entities may have recourse; these are explained in the entries on ▸ Human rights ▸ Individual recourse .

Reparations

• The right of victims of human rights violations to receive reparation is recent in international law. The statute of the International Criminal Court (Art. 75) adopted in July 1998 provides the possibility of reparation for victims of genocide, war crimes, and crimes against humanity.
• For many years, the only mechanisms available to such victims and their families were the rare judicial decisions from domestic court, ad hoc procedures such as Truth and Reconciliation Committees, or funds created within the UN.
• There are two particular funds created by the UN General Assembly. The first is the United Nations Voluntary Fund for Victims of Torture, created in 1982; the second is the Voluntary Fund for Victims of Contemporary Forms of Slavery, created in 1991.
• At the regional level, the European, Inter-American, and African Courts may provide appropriate reparation to victims of violations of the European, Inter-American, and African Conventions on Human Rights (Art. 13 of the European Convention, Arts. 25 and 63 of the Inter-American Convention, Art. 7 of the African Charter on Human and People’s Rights, Arts. 28.h and 45 of the 2008 Protocol on the Statute of the African Court of Justice and Human Rights, and Art. 3.2 of the 2005 Supplementary Protocol to the ECOWAS Court of Justice).

▸ Customary international law ▸ African Commission and Courts for Human Rights ▸ Embargo ▸ European ▸ Court of Human Rights ▸ Hierarchy of norms ▸ Human rights ▸ Individual recourse; ▸ Inter-American Court of, and Commission on, Human Rights ▸ International conventions ▸ International Court of Justice ▸ International Criminal Court ▸ International Criminal Tribunals ▸ Natural law, religious law and positive law ▸ Penal sanctions in humanitarian law ▸ Reparation (Compensation) ▸ Sanctions (diplomatic, economic, or military) ▸ Security Council of the UN ▸ Soft law ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity