UNIT 1.

INTRODUCTION: PUBLIC INTERNATIONAL LAW

1.1. INTERNATIONAL LAW

El derecho internacional es una interaccin entre estados y como los estados negocian
los asuntos.

New and old rules and challenges. Ex: piracy, lethal autonomous weapons systems
(LAWS).

FOLKRTT: es derecho internacinoal public law en sueco.

English: law of nations.

PUBLIC VS PRIVATE.

TERRITORY: What are the rules regarding one states military presence on another states
territory?

LAW OF TERRITORY AND CONFLICT

STATEHOOD AND ARMED GROUP: what is a state and what type of conflict going
on and what rules apply. Responsibility for violations of IHL and IHR. DUTIES.
LAW OF TERRITORY, SEA AND SETTLEMENT OF DISPUTES.
LAW OF THE SEA AND ENVIROMENTAL LAW.

1.2. PUBLIC INTERNATIONAL LAW

Norms agreed primarily between states that bind them in the interactions. It affects
what goes in within states.

Natures of PIL: Normative for states (shaping their behaviour) or apologetic (a way of
justifying what has already been decided or done)? Serves strong states, hope for the
appressed, interferences into states? RESPUESTA

Some areas of law are clearer than others, more compliance in some areas than in
others. But certainly relevant

1.3. PIL: DEVELOPMENT OVER LONG PERIOD

Roots form jus gentium (natural law applied to human life, general norms,
ethical system, but not clear and applicable system of norms).
Bilateral agreements between rulers on the treatment of foreign traders (from
1000s)
Rules about the sea (from the 1200s) concern, protection of trading vessels in
conflict or from piracy.
Right to territory (relevant from 1300s)
 Middle ages: diplomats began receiving protection by having certain immunity
recognised.
The system of states (states as the entities running human affairs) fully
developed in the 1600s.
Hugo Grotius systemised norms and reducen dependence on jus gentium by
connecting the system of norms to regents (law of nations)- argued that thy
created norms through their will.
Natural law and rules by regents complement each other. The latters focus was
the creation of new norms
1700s- shift from regents (persons) to states as the legal continuing entities (diff
between the states and its rules)
PIL expressed the will of the powerful states: division of the world by spain and
Portugal, non European territory, terra nullius open for colonisation, LOS
protected Dutch and English trade or fishing.
1800s: break with natural law as th basis for interaction between regents/States
System of states now fully developed
HOBBES claimed the natural state was of struggle for survival (non existing
norms). Thus norms only created by the will to be bound by them- no one above
WOLFF AND VATTLE- the system of states characterised by anarchy and struggle
for survival. States had the same freedom as individuals (strong state
sovereignty). PIL existed to respect the freedom and equality of states

How can fully independent (sovereign) states be bound by PIL?

1.4. CONSENT AND PIL

The Wimbledon case (CRIMINAL LAW INTERNATIONAL JUSTICE, 1923)

Versailles Treaty: KIEL CANAL (international waterway) could not be blocked by

Germany although it was in Germany territory. Germany bound by the treaty, but
breached it.

Does sovereignty override treaty obligations?

The right of entering into international engagements is an attribute of State sovereignty.

SOVEREIGNTY

Es la soberana del estado la que decide obligarse internacionalmente.

Sovereignty not a clear legal concept. Sovereignty of states within their own territory (as
against other states) complete authority. But unlimited towards other states.

UN CHARTER ART 2 (1): sovereign equality of states

Sovereignty as lack of all legal obligations?

Sovereignty of sates, as subjects of international law, is the legal authority of the sates
under the athourity of international law. (KELSEN)

THE LOTUS CASE (CIJ 1927)

Collision between ROZ kourt and Lotus on high seas Turkish. 8 nationals died.

Turkey sentenced both those on watch during crash (Turkish and French)

France argued turkey breached PIL by prosecuting foreigner outside its territory- it must
have a clear right under PIL to do so.

Can a state act until it is prohibited, or does it need a right in order to act towards
other states? SE PUEDE HACER TODO LO QUE QUIERAS HASTA QUE SE PROHIBE EN
PIL.

By now positivism had replaced natural law in the relations between states.

STATES MAY DO WHAT THEY WANT AS LONG AS IT IS NOT PROHIBITED (NO RIGHT
NEEEDED)

SOMETHING IS PROHIBED ONLY IF A STATES AGREE IT IS:

PIL governs relations between independent states. The rules of law binding upon states
therefore emanate from their own free will. Restrictions upon the independence of
States cannot therefore be presumed.
AN AMORAL SYSTEM- WHERE JUSTICE?

For purposes of PIL, some assumptions:

Satates are soverign equals

Sovereignty does not rule out being bound by pil
States are nonetheless, only bound by whaty thye have cconsented to
If no prohibition (that they have agreed to), they are allowed to act
It is limited by some basic principles that states cannot opt out of: IUS COGENS and
other considerations

1.5. MODERN PIL: States and premises of PIL

A state is composed by a delimited and permanent territory, people and one central
authority who exercises effective control.
The most important thing is the sovereign or equality of states, who respect each
other as legal equals with rights and duties. The consent of states is a necessity for
becoming bound and only bound by what they have consented to with the legal
authority to make binding agreements that states have.
PACTA SUNT SERVANDA: states can rely on the normative character of treaties.
Not a majority system where a large majority can dominate individual states.
Sovereign equality gives a form of veto in the creation of binding norms.
The function of law: to determinate an issue despite actors (differences between
states. Thus neutralising power diferences)
If there is no PIL, then states relations are completely defined and ruled by strength,
power or influence.
Implications of sovereign equality
No independent monitoring or implementing mechanism/organ or central system of
enforcement/sanctions
States cannot bring each other before their own, national courts (e.g. by rules on
immunity)
Each intl court/tribunal receives its jurisdiction by individual state consent, or by UN
Security Council decision (necessary for peace & security, and based on universal
acceptance of the UN Charter)
But there have been attempts to still apply power and avoid confines of law like CHINA
VS PHILIPINNES with actions like making claims but say no to having the dispute tried
in court, apply economic pressure or negotiate individually with weaker states.

State compliance with PIL

Almost all nations observe almost all principles of international law and almost all of
their obligations almost all of the time -Louis Henkin
States observe all of the law most of the time and most of it all the time
becausetheyfindit convenient, profitable, and helpful -Geoffrey Best
Function of PIL

To avoid conflict (preventive)

To make cooperation, trade, transport possible (states are interdependent)
To handle problems that cannot be individually solved (e.g. environmental
issues, transnational crime)
Thus: inner motivation, and not primarily sanctions
Characteristicfor PIL
The areas of law are differently regulated

Some areas where states want foreseeabilityand clarityhave precise rules

(trade, economic cooperation, law of the sea, law of treaties). Often regulated
in treaties (states could agree)
 Other areas where states want flexibilitycontain many principles (use of
force, self-defence). Often just customary intl law (states have agreed on the
minimum standards by their practice)

Who makes PIL &is bound by it?

Norms agreed primarily between states that bind them in their interactions
But that is not a complete description.

There are norms on PIL not made through traditional means and norms that are
binding on others than states

There are other subjects of PIL that have rights and duties

To be a subject of PIL means:

The ability to have rights (against others) and duties (towards others) and
competences
Capacities to act on the intl legal stage

Make agreements with other intl actors

To bring claims on the international stage (before intl courts, bodies)
Protection against national jurisdiction (immunity) in order to perform their
functions
The subjectsofPIL

States Have full rights/duties under PIL

Certain international organisations (intergovernmental with autonomy):
have limited rights and duties like immunity, enter into treaties with
states
Certain groups: indigenous peoples with some rights and some
resistance groups with some duties
Individuals: Verylimited: Human Rights, IHL, ICL
Where are the norms found and how are they made?
The norms binding on states are found in the sources of PIL. Primarily originating from
states
oAgreed upon in explicit written agreements(treaty law) only binding where a state
has given consent
oAgreed upon through practice(agreement evidenced through compliance with the
norm over time) (customary intl law[CIL]) binding on all