With the adoption of the Charter of the United Nations in 1945, a new binding international legal regime was created for the international community, underpinned by a clear commitment to conduct international affairs in accordance with international law and the compulsory peaceful settlement of international disputes. There is now an overwhelming commitment to the rules-based order introduced in 1945; The membership of the United Nations has grown from 51 to 193 today and includes virtually all nations and peoples of the world. An important approach attributes the legitimacy of international law to the effective consent (explicit or implied) of its subjects. States are bound by treaties to the extent that they accept them; In the meantime, States are bound by customary international law to the extent that they have expressly consented (opinio juris) to its norms in the process of their creation or have done so implicitly (e.g. by not persistently contradicting them). One problem with consent theory is that international law contains norms that claim to bind states, whether they accept them or not, such as norms that emerged before the emergence of the state or norms that have attained the status of jus cogens norms (Dworkin 2013). In response, the strong advocate of consent might respond: “Too bad for the legitimacy of these norms. Among the most spectacular achievements of updating and improving the international legal architecture in the post-1945 world were the adoption of the Rome Statute in 1998 and the commencement of operations of the International Criminal Court (ICC), based in The Hague, Netherlands, some four years later. Then-UN Secretary-General Kofi Annan recognized the ICC statute as a “gift of hope for future generations.” Footnote 58 To be sure, since its opening in the public imagination, the court has often become synonymous with a court of last resort for civilians around the world, seeking redress for abuses committed by unchecked powerful actors.
The Court regularly receives a plethora of communications from civil society actors and others complaining of general human rights violations and other offences outside its jurisdiction, and it has been argued, for example, that general government corruption (see Chapter 18) and a crime of “ecocide” should be added to the types of issues it can pursue. inter alia. However, under its statute, the ICC currently has a mandate to prosecute individuals for the grave international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression, although, as noted earlier, many have called for a broader mandate that could include other well-established international crimes. Footnote 59 The prosecution of the well-known international crimes currently contained in the Rome Statute could be considered respect for the most fundamental principles of international civilization, with “war crimes” in particular being one of the oldest areas of international law in the corpus of international humanitarian law (the source of these offences being considered “war crimes”); at least since the first Geneva Convention of 1864. Self-determination complicates the importance of sovereignty in international law. It is conceptually linked to moral and political notions of popular sovereignty and self-government, which in turn are linked to the values of self-respect and autonomy. In adopting this term, international law has recognized the moral and political value of self-government and accepted that people would rather be governed by their own bad leaders than by outsiders, including those who claim greater competence. At a time when international cooperation is crucial, there is no reliable global system of global governance that enjoys universal respect and addresses concerns about the accountability of leaders, the participation of peoples and their representatives, and the transparency of the regulatory process itself. It is of particular concern that political leaders continue to regard the use of war as their fundamental instrument for the settlement of international conflicts and to devote enormous resources to the preparation of war without being limited by the limits of international law on the use of force. The context is different in that international law developed through a multitude of universal and regional international organizations, rather than the single international federation intended by Rousseau. The problem with theories of absolute sovereignty is that, at best, they can support a narrow consensus idea of international law that, as the examination of the sources of international law in the previous section has shown, does not reflect the reality of how the rules of international law are created, interpreted and applied. Some classical international law thinkers writing in the natural law tradition, such as Alberico Gentili (Wagner 2017), have argued that it is possible to reconcile absolute sovereignty with a broader idea of international law by postulating that only voluntary (i.e.
positive) but non-involuntary (i.e. natural law) rules imposed on states by international law interfere with the concept of absolute sovereignty. In other words, one can be absolutely sovereign while remaining subject to natural law. As expressed in the telegram, it was hoped that international and intergovernmental arbitration – that is, the neutral settlement of disputes by third parties – as well as “progressive disarmament” would be the means to finally end the war. These early “standard-setting entrepreneurs” Footnote 17 included what we would now call “grassroots” advocates of civil society, but also prominent international civil servants, public servants and diplomats, both active and retired. For example, recent research has further highlighted the importance of the 1928 Kellogg-Briand Pact,Footnote 18 named after its initiators, U.S. Secretary of State Frank Kellogg and French Secretary of State Aristide BriandFootnote 19. national policy” (Article 1).
The States that acceded to the treaty, which included the United States, France, Germany, Japan, the USSR, the United Kingdom, China, India and others (for a total of more than 63 States worldwide and virtually all members of the League of Nations), agreed “that the settlement or settlement of all disputes or conflicts of any kind or origin, which may arise among them may be sought only by peaceful means” (Article 2).
