Public International Law – Bernas, S. J.
Theories about International Law
CHAPTER 1
Public International Law (Traditional)
 a body of rules and principles of action which are
binding upon civilized states in their relations to
one another.
Public International Law (Modern)
 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.
Scope of International Law
 Regulation of Space Expeditions;
 Division of the Ocean Floor;
 Protection of Human Rights;
 Management of International Financial Systems;
 Regulation of the Environment
 Covers all the interests of contemporary
international and domestic life.
Is International Law a Law?
 A basic challenge to international law is the claim
that there can be no law binding sovereign states.
 United Nations has resolutions but are not binding
upon anybody.
 The International Court of Justice can bind states
only when states consent to be bound.
 National policy or interest is often preferred over Private vs. Public International Law
international law.
 Enforcement is a problem since there is no assured
procedure of identifying violation.
 It is said that what is called international law is not
law because it is commonly disregarded.
 The above objections are based on an exaggerated
notion of sovereignty. The reality is social
independence and predominance of the general
interest.
 States are bound by many rules not promulgated by CHAPTER 2 - Sources of International Law
themselves. It is probably the case that almost all
nations observe almost all principles of Sometimes referred to as “Evidence” of International Law.
international law and almost all of their obligations
almost all of the time (Henkin).
 The ultimate explanation of the binding force of all
law is that man, whether he is a single individual or
whether he is associated with other men in a state,
is constrained, in so far as he is a reasonable being,
to believe that order and not chaos is the governing Material Sources
principle of the world in which he lives (Brierly).
1.) Command Theory
◦ Law consists of commands originating from a
sovereign and backed up by threats of sanction
if disobeyed.
◦ Does not come from a command of a
sovereign. Neither treaties nor custom come
from a command of a sovereign.
◦ Has been generally discredited. Nations see
international law not as commands but as
principles for free and orderly interaction.
2.) Consensual Theory
◦ International Law derives its binding force from
the consent of states.
◦ Treaties are an expression of consent.
◦ Custom, as voluntary adherence to common
practices, is seen as expression of consent.
◦ In reality, there are many binding rules which
do not derive from consent.
3.) Natural Law Theory
◦ Law is derived by reason from the nature of
man.
◦ International Law is said to be an application of
natural reason to the nature of the state-
person.
◦ Much of customary law and what are regarded
as generally accepted principles of law are an
expression of what traditionally was called
natural law.
 Public International Law governs the relationships
between and among states and also their relations
with international organizations and individual
persons.
 Private International Law 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.
Formal Sources
 Refers to various processes by which rules come
into existence (ex. Legislation, Treaty Making,
Judicial Decision Making, Practice of States).
 Concerned with the substance and content of the
obligation, not with how rules come into existence.
 Identifies what the obligations are (ex. State
Practice, UN Resolutions, treaties, judicial decisions,
 writings of jurists).
The doctrine of sources lays down conditions for verifying
and ascertaining the existence of legal principles. The
conditions are the observable manifestations of the “wills”
of the States as revealed in the processes by which norms
are formed – that is, treaty and state practice accepted as
law.
The process of verification is inductive and positvistic. It is
the process of finding what laws the states themselves have
created and what laws they are willing to place themselves
under. It is a manifestation of the fact htat international law
is characterized by indivdualism.
Art. 38, Statue of the International Court of Justice
 The most widely accepted statement of the
“sources” of international law.
Sources of International Law according to Art. 38:
 Custom Treaties
 Other International Agreements
 Generally Recognized Principles of Law
 Judicial Decisions
 Teachings of Highly Qualified and Recognized
Publicists
Custom or Customary Law
 A general and consistent practice of states followed
by them from a sense of legal obligation.
 Contains two basic elements of custom:
◦ Material Factor, how states behave; and
◦ Subjective Factor, why they behave the way
they do.
 The Material Factor: Practice of States or Usus (D,
C, & U)
◦ Initial factor for determining the existence of
custom.
◦ Duration can either be short or long (ex.
Exemption of fishing vessels as prize of war, as
affirmed in The Paquete Havana).
◦ Consistency is more important than Duration.
The basic rules are Continuity and Repetition
(Asylum Case, ICJ Reports, 1950).
◦ Uniformity and generality of practice need not
be complete but it must be substantial.
Opinio Juris
 The belief that a certain form of behavior is
obligatory, is what makes practice an
international rule. Without it, practice is not
law.
 It should be noted that it is also possible for
customary law to develop which will bind only
several states, or even only two states.
 The party claiming it must prove that it is also
binding on the other party.
Dissenting States; Subsequent Contrary Practice
◦ Dissenting states are still bound by custom
unless they had consistently objected to it
while the custom was merely in the process of
formation.
◦ Dissent protects only the dissenter and does
not apply to other states.
◦ A state joining the international law system for
the first time after a practice has become law is
bound by such practice.
Evidence of State Practice and Opinio Juris
 The acceptable evidence of state practice are:
◦ Treaties
◦ Diplomatic Correspondence
◦ Statements of National Leaders and
Political Advisers
◦ Conduct of States
 By themselves, they do not constitute
customary law unless characterized by Opinio
Juris.
 The existence of Opinio Juris is a matter of
proof. The burden of proof lies with the state
claiming it.
Instant Custom
 It comes about as a spontaneous activity of a great
number of states supporting a specific line of
action.
Usus and Opinio Juris in Humanitarian Law
 The Marten Clause refers to a paragraph in the
1899 Hague Peace Convention stating that, “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 law of nations as they
result from the usages established among civilized
peoples, from the laws of humanity, and the
dictates of human conscience.
 Even without Usus or at least without consistent
practice there can emerge a principle of law based
on laws of humanity and the dictates of public
conscience. One need not wait for thousands of
 civilians to be killed before a ban becomes effective. Judicial Decisions
Treaties
 Determine the rights and duties of states just as
individual rights are determined by contracts.
 Their binding force comes from the voluntary
decision of sovereign states to obligate themselves
to a mode of behavior.
 While generally binding only upon the parties, the
number of contracting parties and the generality of
the acceptance of the rules created by the treaty
can have the effect of creating a universal law.
Law Making Treaties vs. Contract Treaties
 The distinction is not very useful as all treaties must
be observed by the parties under the principle of
pacta sunt servanda (agreements must be kept).
Treaties and Custom
 If the treaty is intended to be declaratory of Teachings of Highly Qualified Writers and Publicists
customary law, it may be seen as evidence of
customary law.
 Normally, treaties and custom can be
complementary.
 If treaties and custom contradict each other, there
may be different solutions for different situations
(Art. 53, Vienna Convention on the law of Treaties):
◦ If a treaty comes later than a particular
custom, as between the parties to the treaty,
the treaty should prevail.
◦ If a later treaty is contrary to a customary rule
that has the status of jus cogens, custom will Equity
prevail.
◦ If a custom develops after the treaty, the rule is
not clear. In practice, an attempt is made to
keep the treaty alive by efforts at reconciling a
treaty with the developing custom.
General Principles of Law Recognized by Civilized Nations
 Also referred to as “general principles of law
recognized by or common to the world's major legal
systems.”
 Has reference to principles of municipal law
common to the legal systems of the world.
 The Restatement refers to them as “supplementary
rules of international law.”
 An example would be the affirmation of that private
rights acquired under one regime does not cease
upon the change of government.
 The decisions of the court have no binding force
except between the parties and in respect of that
particular case.
 Decisions do not constitute stare decisis.
 However, the decision 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.
 The ICJ is the source of principles recognizing the
international personality of international
organizations, the Doctrine on Genuine Link
between a person and a state for purposes of
jurisdiction, and the straight baseline method in
drawing baselines for archipelagos.
 Arbitral decisions have been instrumental on the
formation of international law principles.
 The ICJ is generally reluctant to refer to writers but
they are often taken into consideration.
 The extent to which they are referred to depends
on the tradition of the court or of individual judges.
 Publicists are institutions which write on
international law. However, it should be noted that
these institutions are government sponsored;
hence, they bear within themselves a potential for
national bias.
 Where two parties have assumed an identical or
reciprocal obligation, one party which is engaged in
a continuing non-performance of that obligation
should not be permitted to take advantage of a
similar non-performance of that obligation by the
other party (Diversion of Water from the Meuse,
Netherlands vs. Belgium)
 When accepted, it is an instrument whereby
conventional or customary law may be
supplemented or modified in order to achieve
justice.
 Has two aspects, Procedural and Substantive.
 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), the law is
adapted to the facts of the case;
◦ Praeter Legem (beyond the law), it is used to
fill the gaps within the law;
 ◦ Contra Legem (against the law), a refusal to
apply the law which is seen as unjust.
 This can be an area of great controversy.

Other Supplementary Evidence

UN Resolutions
 Declarations of legal principles and Resolutions by
the UN are generally considered merely
recommendatory.
 If supported by all the states, they are an
expression of opinio juris communis.
 Resolutions can also be a reflection of w hat has
become customary law.

Soft Law
 Others prefer to call this category “non-treaty
agreements.”
 International agreements not concluded as treaties
and therefore not covered by the Vienna
Convention on the Law of Treaties.
 Other sources of soft law are administrative rules
which guide the practice of states in relation to
international organizations.
 Plays an important role in international relations
because often states prefer non-treaty obligations
as simpler and more flexible foundation for their
future relations.
 The difference mainly lies in the wish of the parties
to model their relationship in a way that excludes
the application of treaty or customary law on the
consequences of a breach of obligations.

Chapter 4: International Law and Municipal Law

Dualism vs. Monism

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