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PUBLIC INTERNATIONAL LAW

Definition

✓ 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 the past, it deals almost exclusively with regulating the relations between states

o in diplomatic matters; and

o in the conduct of war

✓ 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 their relations with persons, whether natural or juridical” - 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

Subjects of international law

o Sovereign States (principal subject)

o international organizations
o individuals

Scope of International Law

Primary Concern:

✓ Preservation of peace

Other Coverage:

✓ Regulation of space expedition

✓ Division of the ocean floor
✓ Protection of human rights,
✓ Management of the international financial system, and
✓ Regulation of the environment
✓ all the interests of contemporary international
✓ even domestic life

Why International Law is NOT a Law?

1) No abiding sovereign states

2) No international legislative body
3) GA Resolutions are generally NOT BINDING
4) No international Executive
a. Security Council is hamstrung by the veto power
5) No central authority that can make judgment binding on states
6) ICJ can bind states ONLY when they consent to be bound
7) National officials tend to find justification in everything they do
8) National policy or interests is often preferred over international law

Theories about International Law

1) Command Theory
a. Law consists of commands originating form a sovereign and backed up by threats of sanction if
disobeyed (John Austin)
b. In this view, international law is not a law because it does not come from a command of a sovereign.
c. Treaties and custom do not come from a command of a sovereign

2) Consensual Theory
a. International law derives its binding force from the consent of states.

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b. Treaties and customs are expressions of consent

3) Natural Law Theory

a. Law is derived by reason from the nature of man.
b. Customary Law and the Generally Accepted Principles are expressions of natural law

Why international law IS a Law?

✓ Because it is seen as such by states and other subjects of international law

PUBLIC and PRIVATE International Law Distinguished

Private International Law (Conflict of Laws)

✓ is really domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are
questions of the applicability of foreign law or the role of foreign courts.

Public International Law

✓ governs the relationships between and among states and also their relations with international organizations and
individual persons.

League of Nations

✓ created in the aftermath of World War I, to prevent the recurrence of world conflagration
✓ consisted of 43 member states including five (5) British dominions
o India
o Canada
o South Africa
o Australia
o New Zealand

✓ Created the Permanent Court of International Justice (PCIJ)

✓ Failed to prevent World War II

UNITED NATIONS

✓ Founded in 1945
✓ marked the beginning of true a truly universal institution
✓ Three Major Grouping of States
o Western States (United States)
o Socialist States (Soviet Union)
o Developing Countries (Philippines, Malaysia, Thailand, Singapore, South Korea)

Sources of International Law

Formal Sources

➢ Refer to the various processes by which rules come into existence

➢ Legislation is a formal source of law
➢ Treaty making, judicial decision making, as well as practice of states

Material Sources

➢ Not concerned with how rules come into existence but with the substance and content of the obligation
➢ They identify what the obligations are
➢ State Practice, UN Resolutions, treaties, judicial decisions and writings of jurists
➢ Referred to as “evidence” of international law

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Article 38(1) Statute of the ICJ

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

contesting states;
Primary
Sources
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
Secondary
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

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

Ex aequo et bono – This principle is found in Article 33(2) of the Statute of the International Court of Justice (ICJ).
According to this provision, the parties to a case before the ICJ may stipulate and therefore ask the Court to decide their
dispute based solely on equity and outside the recognized set of rules under international law.

Q. What is its difference from equity?

A. Equity, as a generally accepted principle, [Art. 38(1)(c)] is also a source of obligation under international law

I. Custom or Customary International Law

➢ A general and consistent practice of states followed by them from a sense of legal obligation.” (Restatement)

Two (2) basic elements of custom:

1) material factor

a. How states behave

b. Practice of states or usus

Evidence

• Treaties
• Diplomatic correspondence
• Statements of national leaders and political advisers
• Conduct of states

NOTE: by themselves, they DO NOT CONSTITUTE Customary International Law, unless

characterized by OPINIO JURIS.

✓ Consent to such UN resolutions is one of the forms of expression of opinio juris with regard
to the principle of non-use of force, regarded as a principle of customary international law
(Nicaragua v. United States)

c. Initial factor for determining the existence of custom is the actual behavior of states (usus). This includes
several elements:

i. duration
ii. uniformity and consistency (continuity and repetition)
1. need not be complete; only substantial (Nicaragua v. US)
iii. generality of the practice of states

2) psychological or subjective factor

a. Why they behave the way they do.

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IMPORTANT: 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 Havana on the exemption of fishing vessels
from capture as prize of war.

QUESTION: Are fishing vessels exempt from capture as prize of war?

ANSWER: Yes. Coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been
recognized as exempt, with their cargoes and crews, from capture as prize of war.

What is the duration required?

In the North Sea Continental Shelf Cases, however, the Court indicated that a short duration, by itself, will not exclude the
possibility of a practice maturing into custom provided that other conditions are satisfied.

Duration therefore is not the most important element. More important is the consistency and the generality of the
practice. The basic rule on consistency, that is, continuity and repetition, was laid down in the Asylum Case (ICJ Reports
1950). The facts in the case were as follows

Asylum Case (ICJ Reports 1950)

On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same day. On the following day, a
decree was published charging a political party, the American People’s Revolutionary Party, with having prepared and
directed the rebellion. The head of the Party, Victor Raul Haya de la Torre, was denounced as being responsible. With other
members of the party, he was prosecuted on a charge of military rebellion....

On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted to
Haya de la Torre, at the same time he asked that a safe-conduct be issued to enable the refugee to leave the country. On
January 14th, he further stated that the refugee had been qualified as a political refugee. The Peruvian Government
disputed this qualification and refused to grant a safe-conduct. A diplomatic correspondence ensued which terminated in the
signature, in Lima, on August 31st, 1949, of an Act by which the two Governments agreed to submit the case to the
International Court of Justice.

The decision of the ICJ was against Colombia:

Finally, as regards American international law, Colombia had not proved the existence, either regionally or locally, of a
constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the
territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to
discern therein a usage peculiar to Latin America and accepted as law.

It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a
unilateral and definitive decision binding on Peru.

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.

Opinio juris
First, establish the existence of state practice
Second, 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.

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Who can be bound by CIL?

➢ only several states, or

➢ even only two states

But the party claiming it must prove that it is also binding on the other party. In the Asylum case, this was not proved.
But this was proved in the case of Right of Passage over Indian Territory (ICJ Reports 1960) where the right of Portugal
to pass through Indian Territory was recognized.

As the Nicaragua case again put it:

... [f]or a new customary rule to be formed, there must be

➢ a settled practice
➢ opinio juris sive necessitatis

Will dissenting states be bound by custom?

• Yes. Unless they had consistently objected to it while the custom was merely in the process of formation (Anglo-
Norwegian Fisheries Case)
• Dissent protects only the dissenter and does not apply to other states
• States joining the international law system after a practice has become law – is bound by such practice

Instant Custom

A spontaneous activity of a great number of states supporting a specific line of action

✓ In the aftermath of the 911 attack (World Trade Convention), a coalition of forces supported the action
taken by the US against Osama Bin Laden
✓ The united action have given birth to instant customary law classifying the attack as an armed attack
under Article 51 of the UN Charter justifying collective self-defense.
✓ The object of defense was not an attack from a state but from a non-state organization

Martens Clause

✓ Refers to a paragraph found in the 1899 Hague Peace Convention

✓ First inserted by the Russian publicist Fyodor Martens
✓ Found its way into a number of treaties including the 1949 Vienna Convention and the First Additional
Protocol of 1977.
✓ Cited by the ICJ in the Legality of the Threat or Use of Nuclear Weapon
✓ It says:
“Until a more complete code of laws of war has been issued, the High Contracting parties deem
it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants
and belligerents remain under the protection and the rule of the principles of the law of nations as they
result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the
public conscience.”

What is apartheid?

The Apartheid Convention declares that apartheid is a crime against humanity and that “inhuman acts resulting from the
policies and practices of apartheid and similar policies and practices of racial segregation and discrimination” are
international crimes (Article 1).

Article 2 defines the crime of apartheid –“which shall include similar policies and practices of racial segregation and
discrimination as practised in southern Africa” – as covering “inhuman acts committed for the purpose of establishing
and maintaining domination by one racial group of persons over any other racial group of persons and systematically
oppressing them”.

Acts that fall within the ambit of the crime

• murder, torture, inhuman treatment and arbitrary arrest of members of a racial group;

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• deliberate imposition on a racial group of living conditions calculated to cause it physical destruction;
• legislative measures that discriminate in the political, social, economic and cultural fields;
• measures that divide the population along racial lines by the creation of separate residential areas for racial
groups;
• the prohibition of interracial marriages;
• the persecution of persons opposed to apartheid.

2. Treaties

✓ another source of International law

✓ Multilateral or bilateral
✓ Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior.
✓ While treaties are generally binding only on the parties, the number of the contracting parties and the generality
of the acceptance of the rules created by the treaty can have the effect of creating a universal law

Definition

A treaty under Article 2(a) of the Vienna Convention on the Law of Treaties is:

1) an international agreement
2) concluded between States
3) in written form and
4) governed by international law,
5) whether embodied in a single instrument or in two or more related instruments and
6) whatever its particular designation

How treaties are interpreted?

Article 31 (VCLT) – Treaties must be interpreted in good faith and in accordance with the ordinary meaning given to the
terms of the treaty in their context and in light of its object and purpose.

Article 32 (VCLT) – Supplementary means of interpretations:

a) preparatory works of the treaty

b) circumstances to the treaty’s conclusion

State Party v. Signatory to a treaty

State Party – bound to abide by all the provisions of the treaty

Signatory to a treaty – only bound to refrain from doing acts which defeat the object and purpose of the treaty (Article 18,
VCLT)

Treaty v. Customary Rule

General Principles of Law

✓ Recognized by or common to the world’s major legal system
✓ Has reference to principles of Municipal Law common to the world’s legal system
✓ Referred as supplementary rules of international law (Restatement)
✓ Found in judicial decisions and teachings of the most highly qualified publicists of the various nations
✓ 1928 Chorzow Factory Case
o “it is a general conception of law that every violation of an engagement involves an obligation to make
reparation.”
o Another example would be the affirmation that private rights acquired under one regime does not cease
upon the change of government.
o The principle of estoppel is yet another example. Other examples can be given.

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