27 February, 2026
Principles and Accountability for Internationally Wrongful Acts
Summary
Marcus Tullius Cicero (52 BC) noted ‘when the drums of war begin to beat, the laws of war fall silent.’ Cicero’s comment may be true but omits the context of time. Do drums begin to beat at a particular time and not beforehand because the laws of war have prevented war up to that time? After the drums stop beating, is there accountability for wrongful acts that occurred beforehand?
Society has evolved with refined national and international structures, values and interests. Current civil society remains obliged to critique public international law constructively. To do so, reviewing the rule of international law and its calculus is useful.
In sum, international law creates obligations of states not rights (§1). Obligations flow from international treaties and from customary state practices (§2). International law is not deficient but structurally different from domestic law (§3). Human rights law and the International Criminal Court are evidence of the progressive development of international law (§4). Conclusions follow (§5).
1. International law provides for the obligations of states, not for the rights of states
States are all-powerful sovereign entities at the apex of the international order. States may do as they wish unless they have assumed international obligations to do otherwise. International law does not provide for rights of states as states do not need law to prescribe their rights. As ‘the king is law’ in a domestic context, ‘the state is law’ in an international context.
The Case of the SS Lotus (France v Turkey, 1927). On 02 August 1926, the French-flagged mail steamer, S.S. Lotus, collided with the Turkish-flagged collier, S.S. Bozkurt, in international waters of the Aegean Sea near Mytilene. The Bozkurt sank and eight Turkish nationals died. The differently flagged ships demarked the two different sovereigns’ territories. Turkey convicted the French Officer of the Watch on charges of manslaughter under Turkish law. France filed a claim against Turkey with the Permanent Court of Justice (PCIJ, established 1922 under the Covenant of the League of Nations (1919)). France argued Turkey lacked the jurisdiction to prosecute a French citizen due to provisions of international law at the time. The PCIJ narrowly concluded (8-7) “Turkey, by instituting criminal proceedings in pursuance of Turkish law against [the Lotus’ Watch Officer] at the time of the collision has not acted in conflict with the principles of international law.” Hence, Turkey was not under an international obligation that would prevent Turkey from prosecuting as it did. Thus, under the ‘Lotus principle,’ states may act as they wish providing that they are not obliged to do otherwise under international law.
2. The core of international law and its two primary sources of its formation
International law is a regime of norms, i.e., a body of legally binding international obligations that states and international organizations consent to fulfill in terms of their expected – normative – conduct in their future international relations with other states. While normative in character, obligations are expressed in positive terms. States and international organizations possess international legal personality, meaning they have the capacity to enter into treaties and hence to assume and to fulfill those obligations in the future.
2.1 Treaties as a source
Norms are set out in expressly written terms in bilateral and multilateral international treaties. Memoranda of Understanding and Declarations express normative expectations but do not form legally binding international obligations. After negotiations, treaties arise from a two-step process.
Regarding states, treaties are first signed by heads of governments. Subsequently, signed treaties are ratified by states’ domestic legislatures and law-making bodies. Treaties come into force when a predetermined number of signing states have ratified the treaty. The Vienna Convention on the Law of Treaties (1960) provides for common overarching principles.
Regarding international organizations, treaties are first signed by employees holding ‘full powers,’ e.g., a Secretary-General. Subsequently, as international organizations lack legislatures and law-making bodies, signed treaties become subject to ‘acts of formal confirmation’ that are completed according to the organization’s internal rules of administration. Illustratively, the UN’s Secretary General will sign a treaty, and subsequently the General Assembly will ‘adopt the text of the treaty.’ The internal rules are determined by the international organization itself drawing on the powers that are either delegated to it by the organization’s Member States or are implied by it. The Vienna Convention on the Law of Treaties between States and International Organizations (1986) provides for common overarching principles.
2.2 Customary international law as a source
Norms are inferred from a combination of (i) a particular customary practice of states (‘state practice’ or ‘usus’), and concurrently (ii) the belief held by a majority of states that the particular state practice forms a legally binding international obligation (‘opinio juris’). Both the objective fact-based element of state practice and subjective element of belief are required to form custom.
Right of Passage over Indian Territory (Portugal v. India, 1960). Portugal claimed a right of passage over India’s sovereign territory to connect Portugal’s coastal and inland enclaves (Goa, and, Dadra and Avari, respectively). Portugal argued a custom had evolved for more than a century during British rule which permitted free passage of Portuguese goods and nationals across India’s territory and between these Portuguese territories. The International Court of Justice (ICJ) concluded a "constant and uniform practice" of allowing free passage of individuals and goods across India existed and that a customary obligation to permit free passage became legally binding on India despite the absence of a treaty. Had India earlier met the legal conditions to be a ‘persistent objector’ to this custom, India may have been successful in this case.
2.3 Use and shortcomings of custom
Critics argue custom is not as rigorously or precisely documented as treaty law. Customary law evolves over time and draws on historical practice retrospectively, whereas treaty often addresses contemporary issues prospectively and can more sharply focus on the issue at hand. Custom may be inferred from e.g., UN General Assembly (UNGA) Resolutions, Declarations, recommendations from the International Law Commission (ILC) made to and adopted by the UNGA, and perhaps from legislation passed by many states that carry a common object and purpose. However, inference is not as precise as written text. Further, neither resolutions, declarations nor ILC recommendations expressly set out legally binding international obligations, as do treaties.
In each case, treaty law is ‘formally received’ and incorporated into domestic legislation following ratification, while customary international law is automatically incorporated into common law. The People’s Republic of China, a civil law state (vice common law) has recharacterized the more traditional ‘customary international law’ as simply ‘international practice’ and employs it selectively. Scholars from the U.S., a common law state, argue e.g., the UN Convention on the Law of the Sea (UNCLOS, 1982) reflects customary international law that is legally binding on all states despite limited ratification of UNCLOS.
On the other hand, custom may become so entrenched within the international order that it eventually becomes subject matter of treaty law. ‘Declaratory treaty’ does not necessarily form new law but does ‘declare’ custom in form and function of a treaty. Examples inform.
The Montevideo Convention on Rights and Duties of States (1933) codified customary practices that formally recognized entities as states and had existed for centuries.
- The Montevideo Convention on Rights and Duties of States (1933) codified customary practices that formally recognized entities as states and had existed for centuries.
- The Geneva Protocol (I) Additional to the Geneva Conventions (1977) codified the protection of civilians during armed conflict, an already longstanding customary practice.
- The Vienna Convention on Diplomatic Relations (1961) expressed in writing the well-established customary practices regarding the immunity of diplomats essential to international relations.
- While treaty law, UN Charter (1945) Art 2(4) is also declaratory of custom, viz., prohibiting the threat or use of force in the settlement of international disputes. The Nicaragua case informs.
- The Montevideo Convention on Rights and Duties of States (1933) codified customary practices that formally recognized entities as states and had existed for centuries.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States, 1986) (re ‘the Contras and Colonel Oliver North’). The ICJ concluded customary international law that is later found in a declaratory treaty does not disappear but remains extant alongside that declaratory treaty. In this case, the ICJ could not apply the UN Charter, including Art 2(4) concerning prohibition of threat or use of force, due to the (Vandenberg) reservation to the Charter that the United States had declared before signing the Charter in 1945. However, the ICJ determined that the Court may consider customary international law concerning the threat or use of force and non-intervention in its own right, as the Court found custom exists independently of its declaratory treaty. This ‘dual sourcing’ of the same legal principle of prohibition of threat or use of force – from treaty and custom – led to the U.S.’ losing one of its objections to the proceedings.
3. International law is not deficient but structurally different from domestic law
International law is criticized as being ineffective in that parties who breach international law are seldom or never held to formal account. Some will cite such occurrences as material shortcomings of law, and question why there is law in the first place if those breaching it cannot be held to account.
In reply,
- international law is a body of before-the-fact norms or expected behaviours, as is domestic law;
- domestic law works within a centralized legal system that is hierarchically structured with individual citizens as subjects at the bottom of the structure and one law-making government – the king – and an independent judiciary at the top, both of which still remain accountable to the supreme principle of ‘rule of law;’ while the king may be law, the king and his judges are still subjects of law and subject to the rule of law;
- international law works within a flat decentralized legal system with all (currently 193) sovereign states as peer law makers and peer subjects of international law at the same time and subject to judicial processes only if states first consent to those processes; there are 193 kings who all agree there is no rule of international law save the one or more kings who consent to become subject to rule of international law and only in any one circumstance;
- a state creates (legislative), determines (judicial) and enforces (policing) its law to govern its citizens as automatic subjects of domestic law and jurisdiction of domestic courts, whereas states collectively create law if, as and how they choose, thus becoming subjects of international law by choice; sovereigns who breach international law are accountable to no one unless they first consent to be held accountable; ICJ Statute Art 36 provides states that are party to an action must first consent to the jurisdiction of the court before the action commences.
- international law is a body of before-the-fact norms or expected behaviours, as is domestic law;
Request for the indication of provisional measures. On 26 February 2022, Ukraine filed an application with the ICJ to begin proceedings against Russia and a request for provisional measures to stop Russia from continuing its ‘Special Military Operation.’ Ukraine consented to the jurisdiction of the ICJ. Russia’s absence throughout the proceedings indicates it did not consent to the ICJ’s jurisdiction in this matter. Although the ICJ granted provisional measures prohibiting Russia’s operations, the measures remain ineffective.
4. Human rights and the International Criminal Court
Following the events of WWII and the 1960-1970 period of global decolonization, the individual became the express object of a growing body of international human rights law, while states remained the subject of that law. Three developments inform.
4.1 International law from which there cannot be any deviation – ‘jus cogens’
The Vienna Convention on the Law of Treaties Art 53 (1969) provided for jus cogens, i.e., ‘peremptory and non-derogable norms of international law’ from which there is no deviation. Jus cogens is not hierarchically superior to other international law but enjoys a normatively stronger level of compliance from states.
Jus cogens often refer to human rights law in general but the ICJ has not cited which specific international human rights laws constitute jus cogens, perhaps for fear of omission. Jus cogens likely include slavery, torture, apartheid and racial discrimination, drawing on the growing body of international human rights law. Illustratively, this includes the Universal Declaration of Human Rights (Thirty Articles, 1948); Genocide Convention (1948); Geneva Conventions (1949); European Convention on Human Rights (1950); International Conventions on Elimination of all Forms of Racial Discrimination (1965), on Civil and Political Rights (1966), on Elimination of all Forms of Racial Discrimination (1965), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
Jus cogens likely includes denial of a people’s self determination and state aggression.
4.2 Obligations owed by all states to the international community as a whole – erga omnes
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain, 1970). The ICJ made the distinction that states have legally binding international obligations owed to the international community as a whole vice such obligations owed by one state to another state.
Taken together, jus cogens erga omnes refers to a body of legally binding international obligations – albeit normative – unconditionally owed by all states of the international community to the international community as a whole and from which there can be no deviation. Their source may be both treaty and custom.
4.3 The International Criminal Court
The International Criminal Court (ICC) succeeds a series of ad hoc criminal tribunals (e.g., re: Yugoslavia, Rwanda, Cambodia, Sierra Leone, Lebanon), many of which were stood up by UN Security Council Resolutions or special agreements between the state and the UN. The ICC is a court that is independent of the United Nations and draws its powers from the 125 Member States of the international organization, the Assembly of States Parties formed under the international treaty, the Rome Statute (2000).
The ICC has broad but not universal jurisdiction and has enforcement powers. Those convicted in the ICC may be imprisoned. The ICC has successfully determined cases of accountability for individual criminal responsibility for grave breaches of human rights law in the commission of war crimes and crimes against humanity.
5. Conclusions
Beyond criticism are positive findings.
- States choose to create international law expecting such norms will be respected by their peers, yet some excuse themselves from accountability. While such conduct may be self-serving and morally offensive, states must do what is necessary to survive; survival of the sovereign is the first General Principle of International Law, the secondary source of international law.
The alternative, an international order with no international law, is a worse option that the status quo. The systemic anarchy during the 100 Years War was finally settled with the multilateral peace treaty, the Peace of Westphalia (1648) that inaugurated an international order. The publication of De Jure Belli ac Pacis (‘On the Law of War and Peace,’ 1625, by the Dutch jurist, Hugo Grotius) first codified the law of war. The current status quo appears an acceptable – if second-best – alternative to no law. - Critics may find numerous instances in which international law has successfully guided states who are party to an international dispute into settling the dispute lawfully.
- Rule of international law is a forward-moving aspiration that may never be fulfilled. Yet, pursuing rule of international ensures some progressive development of international law, viz., the evolution of e.g., jus cogens erga omnes and the standup of the ICC. Such is evidence of rule of international law.
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© 2026 Lawrence Joseph Howard