Legal System

Legal System

International Legal System

Scholars and judicial decisions have characterized the international legal system as a system of equal and sovereign nation states whose actions are limited only by rules freely accepted as legally binding. [1] Brierly defines international law as ‘the body of rules and principles of action which are binding upon civilized states in their relations with one another’. ( Brierly, J., The Law of Nations 1 (Waldock, H., 6th edn., 1963).

Traditionally, this state-centered system excluded any role for non-state actors and was based upon a belief in the factual as well as legal independence of states. Obligations were largely bilateral and reciprocal in nature, enforced by self-help. Thus, breach of an obligation by one state could lead to a withdrawal of equivalent benefits by the offended state. The subject-matter of international legal regulation was limited, largely concerned with diplomatic relations, the seas and other international waterways, trade, and extradition.

At the close of World War I, states agreed upon the means to identify binding international obligations for the purpose of resolving their disputes. As formulated in the Statute of the Permanent Court of International Justice, the Court should decide an international dispute primarily through application of international conventions and international custom. General principles of law are a third, more rarely used, source of international law, with judicial decisions and teachings of highly qualified publicists providing evidence of the existence of a norm. For the present Court, see Art. 38, Statute of the International Court of Justice.

This formulation remains in the Statute of the present Court. Although the Statute is directed at the Court, it is the only general text in which states have articulated the authoritative procedures by which they agree to be legally bound to an international norm. Treaties and custom thus must be recognized by scholars and other non-state actors as the means states have chosen to create international legal obligations for themselves. A question posed in this study is whether state behavior in adopting and complying with non-binding instruments evidences acceptance of new modes of law-making not reflected in the Statute of the Court. “Ab initio”, however, we take the view that international law is created through treaty and custom, and thus ‘soft law’ is not legally binding per se.

It has become commonplace to note that the international system has undergone tremendous recent changes. From a community of predominately western states, the global arena now contains more than four times the number of states that existed at the beginning of the last century. In addition, other communities have emerged to play important international roles: intergovernmental organizations, non-governmental organizations, professional associations, transnational corporations, and mixed entities comprised of members of different communities. They both contribute to the making of international norms and increasingly are bound by them.

The subject matter of international concern similarly has expanded, paralleling developments within states where governments have taken on an increasing number of tasks. Subjects once deemed private passed into the public sector and from there into issues of transnational concern. International law now governs human rights, environmental protection, weapons systems, and the use of force. It directly regulates individual conduct through the development of international criminal law and criminal tribunals. Most of these topics, as well as the expanding management of the commons areas, are regulated through complex multilateral regimes with supervisory organs established to monitor implementation and compliance. Some of the commitments are non-reciprocal in nature, e.g. human rights, where the duties are owed towards those within the territory and jurisdiction of the state and less towards other states parties to the instrument. In such a system, the traditional method of self-help to induce compliance through withdrawal of benefits is untenable.

Technological change also has made possible communications and travel that place new problems rapidly on the global agenda, including issues of transnational crime and the spread of disease. More information exists and that information is more readily available, creating an awareness of the multiplicity of problems that require international solutions. The relative simplicity of traditional international law necessarily has given way to complex forms, processes, instruments, and norms. Successful or unsuccessful attempts to resolve problems that arise in one subject area cannot always be projected into other subject areas.

The needs and approaches of international environmental law, for example the notion of ‘common but differentiated responsibilities’, may not be appropriate to the human rights field or that of arms control. On the other hand, there has been considerable cross-over, from national law to international law and back (vertical cross-over) as well as from one subject area of international law to another (horizontal crossover). An example of the latter is state reporting as a supervisory mechanism, which began in the human rights field and has become widespread in instruments concerning environmental protection.

Author: Dinah Shelton

Spanish Translation of legal system

This is the legal translation of English to Spanish in relation to legal system and / or a definition of this topic: Ordenamiento Jurídico (in Spanish, without translation of the dictionary entry).


See Also

  • Law
  • Rule of Law
  • Law System
  • Legislation



1. See the Case of the S.S. ‘Lotus,’ 1927 P.C.I.J., ser. A, No. 10, at 18 (‘International law governs relations between independent states. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aims’).

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