Public International Law

prepared by Anna Szarek-Zwijacz, PhD

General characteristic
 International law
• The term “international law” was first used by
the English philosopher Jeremy Bentham in
1780 in his treatise entitled “Introduction to
the Principles of Morals and Legislation”.
• This term replaced the older terminology “law
of nations” which can be traced back to the
Roman concept of “ius gentium”
 Private v. Public
International law
The term „International Law” is used in two
meanings:
• Public International Law (usually just termed
International Law)
• Private International Law

During our course we’ll deal only with Public

International Law.
 Private International Law
Private International Law deals with those cases, within a
particular legal system, in which foreign elements are
involved, raising questions as to the application of foreign law.
for example: The Pole wants to marry the Philippines in Brazil or
The Spanish inherits the property in Japan.
Private international law is therefore a set of conflict-of-law
rules.
The rules indicates the law of which State should apply in
particular situation with foreign elements.
 Definition of Public International Law
• The traditional definition: the law that
governs the relations between States.
• That definition reflects the prevailing (until the
Second Warld War) doctrine considering that
only States could be subjects of Public
International Law – in the sense of enjoying
international legal personality, i.e., being
capable of possessing international rights and
duties.
 Definition of Public International Law
• Since the mid-twentieth century, the traditional definition has become
inadequate due to both:
- the expansion of the scope of the Public International Law into new
areas; and
- the emergence of new actors, beside States, on the international
scene, such as international organizations or individuals.
• Therefore the contemporary definition of Public International Law
could be:
• the law that governs the relations between States and other entities
• a body of legal rules which regulates or governs relations between
international persons (subjects)
 The scope of PIL
• Thus, to the contemporary Public International Law consists of
the following:
(a) Legal rules of conduct which States feel themselves bound to
observe in their relations with each others;
(b) Legal rules related to the functioning of international
organizations, their relations with each other and their
relations with States and individuals; and
(c) Legal rules related to individuals and non-state entities as far
as the rights and duties of these subjects are the concern of
the international community.
 Origin of Public International Law
• The foundations of Public International Law - as it is understood today - lie
firmly in the development of political relations between the European
States more than 400 years ago. The development of Public International
Law is connected with the era of sovereign national States dealing with
each other as independent entities.
• In this sense, therefore, the history of this Law can be regarded as
beginning in the 16th Century with the emergence of independent nation-
states.
• However, certain basic concepts of this Law can be traced back thousands
of years ago, in relations between ancient political entities, such as of the
Near East, Greece, Persia, Rome.
• From the ancient times come the oldest treaties, the principle of
inviolability of diplomats, protection of nationals abroad, as well as some
general principles of law (from Roman Law, like pacta sunt servanda).
 Development of Public International
Law
• The coexistence of independent, sovereign States led to the
development of the system of interstate relations.
• The discovery and subjugation of distant lands and peoples by
European States produced numerous conflicting claims of
sovereignty, jurisdiction, rights of trade and rights of navigation as
well as problems of relations.
• All these developments urged the Europeans to seek legal solutions
to solve these problems.
• They resort to the Roman Law and also, to some extend, to the
Cannon Law (the Law of Roman-Catholic Church) for helpful norms
or analogies.
 Public International Law as a science
• By the 17th Century, the growing complexity of international
principles, customs and treaties had given rise to their compilation
and to the development of further rules governing the conduct of
States in time of war and peace.
• The most important treatise, dealing with States’ relations in time
of war and peace, of this period was “De Jure Belli Ac Pacis” (On the
Law of War and Peace), published in 1625 by Hugo Grotius.
• Beside Grotius, there are many scholars who contributed
extensively to “the law of nations” during the 17th and the 18th
centuries: Francisco de Vitoria, Alberico Gentili, Samuel von
Puffendorf, Richard Zouche, Johann Jakob Moser, Christian Wolff,
Emerich de Vattel.
 Hugo Grotius (1583-1645)
• The Dutch jurist and
diplomat Hugo Grotius is
recognized as the “Father of
International Law”, and his
treatise is generally
regarded as providing the
foundation of the Public
International Law.
• He presented the law of
nations as a system of legal
norms.
 International Law in 19th Century.
• The law of nations further expanded in the 19th Century.
• This expansion was due to major events such as the expansion of the
European empires, the rise of powerful States both within and outside
Europe and the Industrial Revolution.
• All these events urged the international community to develop the
International Law in order to accommodate such events.
• Consequently, International Law as a law regulating diplomatic and
commercial relations between States, and the conduct of war, multiplied
and intensified during the 19th Century.
• At the beginning of the Century the Congress of Vienna (1814-1815)
marked the establishment of a new political and legal order for Europe.
Besides the political decisions, also the first codification of some rules of
diplomatic law was made.
• From the 19th Century comes also the first codification of rules of
humanitarian law.
 Henry Dunant (1828-1910)
• Henry Dunant, a Swiss businessman and
philanthropist, started the Red Cross Movement.
• He helped wounded soldiers at the battle of
Solferino in 1859 and then lobbied political leaders
to take more action to protect war victims.
• According to his idea, presented in his book „A
Memory of Solferino”, the International Committee
of the Red Cross was established in Geneva - and
also the local associations of the Red Cross and the
Red Crescent in many countries.
• Due to the efforts of the Committee, the Swiss
government hosted an official diplomatic
conference in August 1864. As its result, the first
convention on humanitarian law was addopted by
12 States (Geneva Convention for the Amelioration
of the Condition of the Wounded in Armies in the
Field).
 International Law in 20th Century
• The establishment of the League of Nations in 1919, following
the First World War, and the establishment of the United
Nations in 1945, following the Second World War, represented
two significant turning points in the development of the
International Law.
• International Law began its evolution from being primarily a
system of regulating relations between States towards
becoming also a system of international cooperation.
 League of Nations
• The League of Nations was the first
international organization established
primarily for the purpose of maintaining
international peace and security.
• In 1921, the Permanent Court of International
Justice (PCIJ) was established as the first
permanent international judicial organ with an
international judicial jurisdiction.
 United Nations
• The establishment of the United Nations in 1945 led to a
progressive development of International Law.
• Since than, a great number of international treaties covering
all aspects of international affaires have been concluded.
• The significant role in developing International Law have been
playing the International Law Commission created in 1947
since its primary purpose is the codification and progressive
development of the rules of International Law.
 The scope of PIL
• Public International Law now covers vast and complex
areas of international concern, including:
• traditional topics, such as the State, peace and security,
the law of war, the law of treaties, the law of the sea, the
law of diplomatic and consular relations,
• as well as new topics, such as international organizations,
human rights, economy and development, air law and
outer space activities, communications, the environment,
international criminal law.
 Principles of international law
• The main principles of international law are
concluded in Art. 2 of the UN Charter:
• Sovereign equality of States
• Fulfilling of international obligations in good
faith
• Peaceful settlement of disputes
• Prohibition of use of force
 The contemporary subjects of
International Law
• States – the primary and principal subject of international law
• International intergovernmental organizations (e.g. UN,
Council of Europe, NATO, UNESCO)
• Specific entities (which establish and maintain diplomatic
relations with States and conclude international treaties):
- The Holy See (the Pope and Roman Curia)
- The Sovereign Order of Malta
• Others (individuals, international corporations…).
 International community –
characteristic
• small number of entities - compared to
communities in particular States;
• relatively low level of organization - compared
to communities in particular States: no „world
government”, „world parliament”
• sovereignty and equality before the law of its
members
 How International Law differs from
domestic law?
• No obligatory or common legislation
• No obligatory system of settlement of dispute/
no obligatory jurisdiction of international
courts.
• No unified system of sanctions
 How the International Law is created?
• States create law for themselves – by concluding treaties agreements
(treaties) and by consisted practice (custom).
• Their willingness is the clue.
• There is no „international legislative body” such as international parliament
that would impose international law norms on States.
• Even UN is not „a global parliament”.
• Although within an international organization it could be a body that has
competence to impose binding decisions on member States (like UN Security
Council), but membership in every international organization is based on the
sovereign consent of every member State (a State always become a member
of an international organization on its own request) .
• Therefore, becoming a member of a particular organization, a State must be
aware that in certain situations it will have to comply with its decisions.
 Sources of International Law
• Unlike sources of law in domestic legal systems, sources of
international law cannot be ascertained with the same degree
of specificity, clarity and precision.
• There is no „Constitution” in the system of international law
that would explain sources of international law.
• The Charter of the United Nations is sometimes treated like
quasi-Constitution of international community, but officially –
it’s only the statute of UN.
• The only biding document in which the sources of
international law are listed is the Statute of International
Court of Justice.
 Article 38 of ICJ Statute
„1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules
expressly recognized by the 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.

2. This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto”.
 Primary sources of IL
• Teaties (many names: convention, covenant, agreement,
charter, act – the name is without legal significance) –
international obligations expressly and voluntarily accept
between States.
• Customary international law is derived from the consistent
practice of States accompanied by opinio juris, i.e. the
conviction of States that the consistent practice is required by
a legal obligation.
• General principles of law is the legal principles common to
major legal systems, like: LEX RETRO NON AGIT (NO
RETROACTIVITY ).
 Treaties
• The law of treaties (definition and rules concerning
international treaties) are codified in:
- Vienna Convention on the Law of Treaties 1969 (the
Convention deals only with the treaties concluded between
States) – one of the most significant international documents
- Vienna Convention on the Law of Treaties between States
and International Organizations or between International
Organizations 1986 (not yet in force).

We’ll discus the provisions of the 1969 Vienna Convention in detail both during
lectures and classes.
 International custom
• The ICJ’s Statute refers to “international custom, as
evidence of a general practice accepted as law”
• It consists of two elements:
- actual practice of States,
- opinio iuris - the acceptance by States of that
practice as law - legal obligations where a State has
acceded in a practice for a substantial period of time
without protest.
 International custom
• In other words: two constitutive ingredients of custom as a
source of international law are usually distinguished: the
behavioural and the psychological.
• The behavioural implies that there must be a consistent and
recurring action (or lack of action) by States, meaning official
government conduct indicated by such activities as official
statements, court decisions, legislative action, administrative
decrees, and diplomatic behaviour.
• The psychological entails the conviction that, in each case,
such behaviour is required or permitted by international law.
 International custom
• Custom as a source of law is of ancient ancestry: customs
emerged from ancient societies as rules of behavior
stipulating what is permissible and what is impermissible.
Examples: the rule of inviolability of diplomatic agents or the
maximum scope of territorial sea have developed originally as
customary rules and have been later codified.
• Custom is not merely historical source of law and norms of
this nature are still emerging in contemporary international
law to regulate what is permissible or impermissible among
international community.
 General principles of law
• General principles of law is not the same as general principles of
international law.
• While treaties and custom are the most important sources of
international law, general principles of law are mentioned in Article
38 of the ICJ Statute and therefore should not be ignored.
• They are basic principles of law common to all national systems and
applicable to international relations.
• These principles essentially provide a mechanism to address
international issues, like lex retro non agit, pacta sund servanda, the
principle of good faith.
 General principles of law
• A recurrent criticism is that the term “civilized nations”
(used in Art. 38 of the ICJ Statute regarding general
principles of law) is problematic, given its apparent
vagueness and the presumption that some nations may
be uncivilized.
• The predominant scholarly viewpoint, and which has
received judicial endorsement, is that the notion is
founded upon a developed legal system and therefore
includes all but the most primitive of societies.
 Judicial decisions and doctrine
• They are mentioned in Art. 38 of the ICJ Statute but
not as a source of law.
• They are only „subsidiary means for the
determination of rules of law”.
• They are not the source of binding obligations for
States and other subjects of IL.
• The judgments of ICJ are binding but only between
the parties of the dispute and in respect of a
particular case (in the contrary to the common law
system).
Other sources of international law?
• Outside the scope of Art. 38 of the ICJ Statute there are some
other sources of contemporary international law:
1. Unilateral acts of States: unilateral actions by a State may give
rise to legal obligations when it is clear that the State intends to
be bound by the obligation and when its intention is publicly
announced, like recognition of a new State, protest, renunciation
of claims.
2. Binding resolutions of intergovernmental organizations (ex. EU
resolutions, Security Council resolution based on Chapter VII of
UN Charter).
Non binding resolutions and some political acts are only considered
as „soft law”.
 No obligatory jurisdiction of
international courts
• A State need to accept the jurisdiction of the
particular international court to resolve the dispute
in which it is involved.
• The State party to the dispute must agree that the
relevant court should decide the case.
• But there are courts with very wide jurisdiction.
• The most significant is the International Court of
Justice in the Hague.
 No common sanctions
• There is a general rule of international law that a
State that is breaching international law should bear
international responsibility.
• There is no mechanism that could have power to put
sanctions in each case when State is breaching
international law.
• But there are some sanctions: by international
organizations or by States – embargo e.g.
• So… Is international law a real LAW SYSTEM?