GENERAL PRINCIPLES

1) Definition of Public International Law

The traditional definition of international law is that it is a body of rules

and principles of action which are binding upon civilized states in their
relations to one another. States are the sole actors in this definition and,
in the past, public international law dealt almost exclusively with
regulating the relations between states in diplomatic matters and in the
conduct of war.

Today, sovereign states remain as the principal subjects of international

law; but they are now joined by international organizations and even by
individuals.’ Thus, the Restatement (Third) of Foreign Relations Law of
the United States, which U.S. courts generally consider as the most
authoritative work on the subject, defines international law as the law
which deals “with the conduct of states and of international
organizations and with their relations inter se, as well as with some of
theirharactens with persons, whether natural or juridical.”

2) Public International Law Distinguished

a) Private international law: Private international law consists of

principles and rules for dealing with legal disputes that have a foreign
element: for example, a cross-border divorce case, or transnational
commercial dispute. The terms ‘private international law’ and ‘conflict
of laws’ are interchangeable, and the subject encompasses choice of
law, the court’s jurisdiction and the recognition and enforcement of
foreign judgments. The scope of private international law varies from
country to country, however, and each jurisdiction has its own rules.

b) International morality or ethics: International Morality consists of

moral principles which are endorsed by a number of nations. The rules
of customary International Law reflect International Morality. One of
the major sources and sanctions of International Law has been
International Morality.

1
 c) International comity: Even when a state has basis for exercising
jurisdiction, it will refrain from doing so if its exercise will be
unreasonable. This is treated in Hartford Fire Insurance Co. v.
California, but the principle involved is summed up in Third
Restatement. Unreasonableness is determined by evaluating various
factors, such as the link of the activity to the territory of the
regulating state, the connection, such as nationality, residence, or
economic activity, between the regulating state and the person
principally responsible for the activity to be regulated, the character
of the activity to be regulated, the existence of justified expectations
that might be protected or hurt by the regulation, the likelihood of
conflict with regulation by another state.

d) International diplomacy: The art or practice of conducting

international relations, as in negotiating alliances, treaties, and
agreements.

e) International administrative law: The notion of ‘international

administrative law’ is frequently referred to by judges of international
administrative tribunals (IATS), as well as applicants and respondents
in the proceedings of those tribunals. Many seminars organized by
IATS use the term ‘international administrative law’.The notion,
however, is far from self-explanatory. It surely depicts an important
aspect of the legal relationship between international organizations
and their employees, but the use of the term by IATS has not been
entirely clear.

3) Sources of Public International Law

a) Article 38, Statute of International Court of Justice

Article 38 is primarily a directive to the Court on how it should resolve

conflicts brought before it. Article 38 says:

“The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

2
 a. international conventions, whether general or particular,
establishing rules expressly recognized by contesting states;
b. international custom, as evidence of a general practice accepted
as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of
law.

This provision shall not prejudice the power of the Court to decide ex
aequo et bono, if the parties agree thereto.”

Article 38 is a declaration by states that these are the laws under

which they are willing to be bound. Thus, another statement of
sources is the Restatement (Third) of Foreign Relations Law of the
United States which says:

“ 1. A rule of international law is one that has been accepted as such by

the international community of states

a. in the form of customary law;

b. by international agreement; or
c. by derivation from general principles common to the major
legal systems of the world.

2. Customary international law results from a general and consistent

practice of states followed by them from a sense of legal obligation.

3. International agreements create law for the states parties thereto

and may lead to the creation of customary international law which such
agreements are intended for adherence by states generally and are in
fact widely accepted.

4. General principles common to the major legal systems, even if not

incorporated or reflected in customary law or international

3
 agreements, may be invoked as supplementary rules of international
law where appropriate.”

b) Jus cogens
Jus cogens (or ius cogens) is a latin phrase that literally means
“compelling law.” It designates norms from which no derogation is
permitted by way of particular agreements. It stems from the idea
already known in Roman law that certain legal rules cannot be
contracted out, given the fundamental values they uphold.

Most states and authors agree that jus cogens exists in international
law. Opinions diverge however as to its exact content, sources,
means of identification, and application, as well as to its precise
effects and role within the international legal order. Despite
persistent debates on these matters, jus cogens is now referred to in
several legal instruments within and beyond the law of treaties.

The 1969 and 1986 Vienna Conventions on the Law of Treaties

stipulate that a treaty is void if it conflicts with jus cogens (Art. 53 and
64). The same is true for unilateral declarations, following the guiding
principles adopted by the International Law Commission in 2006
(Principle 8).

According to the Articles on Responsibility finalized by the same

commission in 2001 and 2011, states as well as international
organizations shall cooperate to bring to an end any serious breach
of jus cogens, and shall not recognize as lawful a situation created by
such a breach, nor render aid or assistance in maintaining such
situation (Art. 41/2001 and 42/2011). Moreover, if states or
international organizations are to violate jus cogens, they cannot
invoke any circumstance precluding the wrongfulness of their
conduct, such as necessity or force majeure (Art. 26). Finally,
countermeasures shall not affect jus cogens obligations (Art. 50/2001
and 53/2011).

No exhaustive list of peremptory norms has been drawn officially, but

it is commonly accepted as including the prohibition of the use of

4
 force between states, the prohibition of slavery, racial discrimination,
torture and genocide, as well as peoples’ right to self-determination.
Given the limited number of jus cogens rules and set of effects
attached to them, practice and case law are not abundant. In
contrast, much scholarly attention has been paid to this controversial
topic. Depending on the theoretical perspective adopted, the
content and function of jus cogens can be described in very different
terms.

Hence there are no univocal answers to the fundamental or technical

questions raised by the definition and application of jus cogens.
Authors provide various solutions in this respect, the appreciation of
which very much depends on whether they suit one’s very own
representations of what international legal order is and how it works.

c) Primary Sources of Public International Law

i) International treaties and conventions:

International conventions are generally referred to as treaties.
Treaties are written agreements between States that are governed
by international law. Treaties are referred to by different names,
including agreements, conventions, covenants, protocols and
exchanges of notes. If States want to enter into a written
agreement that is not intended to be a treaty, they often refer to it
as a Memorandum of Understanding and provide that it is not
governed by international law. Treaties can be bilateral,
multilateral, regional and global.

The law of treaties is now set out in the 1969 Vienna Convention on
the Law of Treaties which contains the basic principles of treaty
law, the procedures for how treaties becoming binding and enter
into force, the consequences of a breach of treaty, and principles
for interpreting treaties. The basic principle underlying the law of
treaties is pacta sunt servanda which means every treaty in force is
binding upon the parties to it and must be performed by them in
good faith. The other important principle is that treaties are
binding only on States parties. They are not binding on third States

5
 without their consent. However, it may be possible for some or
even most of the provisions of a multilateral, regional or global
treaty to become binding on all States as rules of customary
international law.

There are now global conventions covering most major topics of

international law. They are usually adopted at an international
conference and opened for signature. Treaties are sometimes
referred to by the place and year of adoption, e.g. the 1969 Vienna
Convention. If a State becomes a signatory to such a treaty, it is not
bound by the treaty, but it undertakes an obligation to refrain from
acts which would defeat the object and purpose of the treaty.

A State expresses its consent to be bound by the provisions of a

treaty when it deposits an instrument of accession or ratification to
the official depository of the treaty. If a State is a signatory to an
international convention it sends an instrument of ratification. If a
State is not a signatory to an international convention but decides
to become a party, it sends an instrument of accession. The legal
effect of the two documents is the same. A treaty usually enters
into force after a certain number of States have expressed their
consent to be bound through accession or ratification. Once a
State has expressed its consent to be bound and the treaty is in
force, it is referred to as a party to the treaty.

The general rule is that a treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in light of its object and purpose.
The preparatory work of the treaty and the circumstances of its
conclusion, often called the travaux preparatoires, are a
supplementary means of interpretation in the event of ambiguity.

ii) International customs

International custom – or customary law – is evidence of a general
practice accepted as law through a constant and virtually uniform
usage among States over a period of time. Rules of customary
international law bind all States. The State alleging the existence of
a rule of customary law has the burden of proving its existence by

6
showing a consistent and virtually uniform practice among States,
including those States specially affected by the rule or having the
greatest interest in the matter.

For example, to examine the practice of States on military uses of

outer space, one would look in particular at the practice of States
that have activities in space. Most ICJ cases also require that the
States who engage in the alleged customary practice do so out of a
sense of legal obligation or opinio juris rather than out of comity or
for political reasons. In theory, opinio juris is a serious obstacle to
establishing a rule as custom because it is extremely difficult to find
evidence of the reason why a State followed a particular practice.

In practice, however, if a particular practice or usage is widespread,

and there is no contrary State practice proven by the other side,
the Court often finds the existence of a rule of customary law. It
sometimes seems to assume that opinio juris was satisfied, and it
sometimes fails to mention it.

Therefore, it would appear that finding consistent State practice,

especially among the States with the most interest in the issue,
with minimal or no State practice to the contrary, is most
important. Undisputed examples of rules of customary law are (a)
giving foreign diplomats criminal immunity; (b) treating foreign
diplomatic premises as inviolable; (c) recognizing the right of
innocent passage of foreign ships in the territorial sea; (d)
recognizing the exclusive jurisdiction of the flag State on the high
seas; (5) ordering military authorities to respect the territorial
boundaries of neighboring States; and (6) protecting non-
combatants such as civilians and sick or wounded soldiers during
international armed conflict

Elements of International Customs

The initial factor for determining the existence of custom is the
actual behavior of states (usus). This includes several elements:
duration, consistency, and generality of the practice of states.

7
The required duration (diuturnitas) can be either short or long. An
example of customary law that is the result of long, almost
immemorial, practice is the rule affirmed in The Paquete Havana2
on the exemption of fishing vessels from capture as prize of war.
Duration therefore is not the most important element. More
important is the consistency and the generality of the practice

Uniformity and generality of practice need not be complete, but it

must be substantial. In Nicaragua v. United States (ICJ Reports
1986), the Court said that the practice need not be “in absolute
conformity” with the purported customary rule. It said:

“In order to deduce the existence of customary rules, the Court

deems it sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.”

Baxter paradox
Baxter's Paradox basically says that countries will seek to codify in
treaties international community expectations that are considered
common "customary law". However, the more countries that sign
on to the international treaties, the more difficult it becomes to
differentiate the customary law (that exists without treaty) from
the terms of the treaties themselves.

So if one were to study customary law, which practices would they

use as evidence? If they use the practices of countries adhering to
the treaty, are they really studying the customary law, or are they
just studying the requirements of the treaty? Once a treaty is
codified, does that entirely remove the country from any analysis
of the custom law upon which the treaty is based? And are treaty
adherents' practices relevant to a discussion of customs followed
by countries that are not parties to the treaty, but who
nonetheless follow the same customs?

8
Opinion juris
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without
it, practice is not law. ... Even humanitarian consideration by itself
does not constitute opinio juris. As the Nicaragua case again put it:

“... or a new customary rule to be formed, not only must the

acts concerned ‘amount to a settled practice,’ but they must
be accompanied by the opinio juris sive necessitatis. Either the
States taking such action or other States in a position to react
to it, must have behaved so that their conduct is “evidence of
a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.” The need for such a
belief, i.e., the existence of a subjective element, is implicit in
the very notion of the opinio juris sive necessitatis.”

Persistent objector
In international law, a persistent objector is a sovereign state
which has consistently and clearly objected to a norm of customary
international law since the norm's emergence, and considers itself
not bound to observe the norm. The concept is an example of the
positivist doctrine that a state can only be bound by norms to
which it has consented.

International Court of Justice (ICJ) Judgment of 27 June 1986 in case

concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. USA, Communique 86/8)

In Nicaragua v. United States (ICJ Reports 1986), the Court said

that the practice need not be “in absolute conformity” with the
purported customary rule. It said:

9
“In order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.”
Facts: On April 9,1984, Nicaragua initiated proceedings against the
United States of America in the International Court of Justice. The
action was based on the allegation that the US had supported, by
its policy and actions, a mercenary army, the “Contras”, in
launching attacks on the territory of Nicaragua, with the purpose
of overthrowing the “Sandinista” Government of Nicaragua.

By funding and assisting, covertly and overtly, the "Contra"

movement, the United States was using, according to Nicaragua,
armed force against Nicaragua in violation of the international
obligations of the United States under general international law as
well as under the United Nations Charter, the OAS Charter and the
bilateral United States-Nicaragua Treaty of Friendship and
Commerce.

It was also submitted that the US had breached customary

international law by: (1) violating the sovereignty of Nicaragua by
armed attacks against Nicaragua: (2) using force and the threat of
force against Nicaragua; (3) intervening in the internal affairs of
Nicaragua; (4) infringing upon the freedom of the high seas and
interrupting peaceful maritime commerce; (5) killing, wounding
and kidnapping citizens of Nicaragua.

Nicaragua demanded that all such actions cease and that the
United States had an obligation to pay reparations to the
government for damage to their people, property, and economy.

The United States argued that the ICJ should refrain from applying
the rules of customary international law because they have been
“subsumed” and “supervened” by those of international treaty
law, and especially those of the United Nations Charter.

10
Issue: Whether the United States had breached customary
international law?

Whether a treaty commitment “counts” as practice for customary

international law and whether a rule belongs to customary
international law even if the behavior of States frequently fails to
conform with the rule in question.

Ruling: The United States of America was in breach of its

obligation under customary international law not to intervene in
the affairs of another State, not to use force against another State,
not to violate the sovereignty of another State, not to intervene in
another State’s affairs, and not to interrupt peaceful maritime
commerce.

The ICJ confirmed that a custom is constituted by two elements:

(1) general practice (objective element); and
(2) opinio juris (subjective element).

Customary international law results from a general and consistent

practice of states followed by them from a sense of legal
obligation. This statement contains the two basic elements of
custom: the State practice and opinio juris.

The initial factor for determining the existence of custom is the

actual behavior of states (usus) or the State practice. It has sub-
elements: duration, consistency, and generality of the practice of
states. The required duration can be either short or long but
enough to enable it to crystallize. Uniformity and generality of
practice need not be complete, but it must be substantial.

Once the existence of state practice has been established, it

becomes necessary to determine why states behave the way they
do. Opinio juris, or the belief that a certain form of behavior is
obligatory, is what makes practice an international rule. Without it,
practice is not law.

11
 The existence of opinio juris is a matter of proof. The burden of
proving its existence falls on the state claiming it.

In this case, the Court said that the practice need not be “in
absolute conformity” with the purported customary rule. In order
to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated
as breaches of that rule, not as indications of the recognition of a
new rule.

In this case, one of the issues was whether the prohibition of the
use of force was customary law, the Court said: It considers that
this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly
resolutions, and particularly Resolution 2625 (XXV) entitled
“Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the
Charter of the United Nations.”

Consent to such resolutions is one of the forms of expression of an

opinio juris with regard to the principle of non-use of force,
regarded as a principle of customary international law,
independently of the provisions, especially those of an institutional
kind, to which it is subject on the treaty-law plane of the Charter.

iii) General principles of law

 Res judicata: Res judicata refers to the rule that a final judgment
or decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all later
suits on all points and matters determined in the former suit.5

The elements of res judicata are as follows: (1) the former

judgment or order must be final; (2) the judgment or order must
be on the merits; (3) it must have been rendered by a court
having jurisdiction over the subject matter and the parties; (4)

12
 there must be, between the first and the second action, identity
of parties, of subject matter and cause of action.6

 Prescription: is the effect of the lapse of time in creating and

destroying rights. Prescription is either acquisitive, in that an
individual is allowed, after a specified period of time, to acquire
title, or extinctive—i.e., barring for a period of time certain court
actions

 Pacta sunt sevanda: The first fundamental rule on treaties is

pacta sunt servanda. Article 26 of the Convention says that
“every treaty in force is binding upon the parties to it and must be
performed by them in good faith.”

 Estoppel: is a rule of international law that bars a party from

going back on its previous representations when those
representations have induced reliance or some detriment on the
part of others.

d) Secondary Sources of International Law

i) Judicial decisions
Article 38 of the Statute directs the Court to apply judicial decisions
as subsidiary means for the determination of the rules of law. But
this is made subject to Article 59 which says that “the decisions of
the court have no binding force except between the parties and in
respect of that particular case.”

Hence, such decisions do not constitute stare decisis. However, the

decisions of the ICJ are not only regarded as highly persuasive in
international law circles; they have also contributed to the
formulation of principles that have become international law.

ii) Writings of publicists

In many cases of first impression, the only authorities that can be
cited are writers. The extent to which they are referred to depends
on the tradition of the court or of individual judges. In common law
jurisdictions, there is reluctance to use them, more so in the US

13
 than in Britain. In civil law jurisdictions, there is more ready
reference to writers. The ICJ is generally reluctant to refer to
writers but they are often taken into consideration.

“Publicists” are institutions which write on international law. They

also play a role. The more significant ones are: The International
Law Commission, an organ of the U.N.; the Institut de Droit
International, the International Law Association, a multinational
body; the (Revised) Restatement of Foreign Relations Law of the
United States; and the annual publication of the Hague Academy
of International Law. It should be noted, however, that these
institutions are generally government sponsored; hence, they bear
within themselves a potential for national bias.

e) Other Sources of Public International Law

i) Soft laws
Not included among the sources is what a growing literature refers
to as “soft law.” Others prefer to call this category “non-treaty
agreements.” They are international agreements not concluded as
treaties and therefore not covered by the Vienna Convention on
the Law of Treaties.

ii) Lex mercatoria

Used to designate the concept of a national body of legal rules and
principles, which are developed primarily by the international
business community itself based on custom, industry practice, and
general principles of law that are applied in commercial
arbitrations (Commercial Arbitration, International) in order to
govern transactions between private parties, as well as between
private parties and States, in transborder trade, commerce, and
finance.

4) Obligations erga omnes

An obligation erga omnes, in contrast, is one that is owed to the
international community as a whole. The legal effect of such a
characterisation is the generation of a procedural right of standing, on
the part of all states, to invoke the responsibility of a state that is in

14
 breach of this obligation. The erga omnes character of a given obligation
may indeed be dependent upon ‘the importance of the rights involved’.

Each of these rights may entail a number of different obligations, from

the obligation to respect that right to the obligation to promote or
protect it. Some of these obligations may be opposable erga omnes
some may not be. In any case, the concept of erga omnes attaches to
the obligation, not the right.

There is therefore an important distinction between and obligation erga

omnes and its corresponding right(s). By referring to the obligation erga
omnes to respect the right to self-determination, the Court in Chagos
provided a welcome clarification on this point.

5) Concept of ex aequo et bono

Often used in international law when a matter is to be decided according
to principles of equity rather than by points of law. Equity, when
accepted, is an instrument whereby conventional or customary law may
be supplemented or modified in order to achieve justice. It has both a
procedural and substantive aspect. Procedurally, it means a mandate
given to a judge to exercise discretion in order to achieve a
determination that is more equitable and fair. Different kinds of equity
are distinguished: intra legem (within the law), that is, the law is adapted
to the facts of the case; praeter legem (beyond the law), that is, it is
used to fill the gaps within the law; and contra legem (against the law),
that is, a refusal to apply the law which is seen as unjust. Obviously, this
can be an area of great controversy.

15