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PUBLIC INTERNATIONAL LAWI. ORIGINS AND FOUNDATIONS OF THE INTERNATIONAL COMMUNITY AND THE
INTERNATIONAL LAW
Ubi societas ibi ius-where there is society there is law
It is the law that rules the international society- composed by those who are actors in the
international arena- international community is composed by subjects in the international law.
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International Law: Law that rules the International Community . It was born with the rise of the
Modern State after the Peace of Westphalia (1648), by which the International Community was
found by independent states with no authority over that needed to cooperate to develop
themselves.
Origins:
● “International” intercourse between groups and nations has always existed (Greeks,
Romans)
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● The law of Nations developed out of the late medieval ius gentium
● Necessary premise for the development of the present International community (and
international law): the rise of modern national States: Peace of Westphalia (1648).
Thanks to the Peace of Westphalia, a birth of an international system based on a plurality of
independent states took place and there was no superior authority over them.
It all began with the nation-state. Europe was the center of the world and the place in which
international law was created. The peace of Westphalia (religious war, 1648) starts the international
public law. States divided themselves from religion and they created a new order.
The Peace of Westphalia: Birth of secular sovereign states in W. Europe. This established of an
international system based on a plurality of independent States. No superior authority would be
over them.
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International Community: Legal concept which refers to States, IGOs... Born as well with the rise of the Modern State.
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is a concept of international law within the ancient Roman legal system and Western law traditions based on
or influenced by it. The ius gentium is not a body of statute law or a legal code,[1]
but rather customary law
thought to be held in common by all gentes ("peoples" or "nations") in "reasoned compliance with standards
of international conduct"
, 1. Transition from the Traditional International Society to the Modern
International Society.
Classical System of International Law (1648-1919)
The Traditional International Society was composed by the sovereign States that emerged
with the Peace of Westphalia and that constituted the center of the International Relations. It was a
System of European and Christian States that considered themselves the “civilized”
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Nations. This European System was homogeneous , small , eurocentric and oligarchic (some of them
had the power and were legally superior, but not today, now legally equal).
In this context, the Classical System of International Law was interstate, liberal (in the way that they
believed that international law had to be just few, they needed to coexist, they didn´t want to
cooperate or integrate), decentralized and oligarchic. In addition, the use of force, colonialism (terra
nullius) and slavery were legal. Colonialism was important for them. They depended on war.
Concept of “just war”. Treaty of Gibraltar is inforced. Treaty of Utrecht: Spain lent the use of
Gibraltar that is enforced. Her position is that the League of nations was the first organization.
Modern or New System of International Law (1919/IIWW-Present)
The Modern International Society started to set up when the States realized they needed to
cooperate in order to develop. Firstly, the League of Nations was created unsuccessfully, and after
the human destruction of the IIWW the United Nations among other IOs were founded. The Modern
Int. Society is characterized by its universality and heterogeneous and plural nature. It is interstate
and state centered, unipolar, hardly integrated, interdependent(globalized) and decentralized, but
there exists some degree of institutionalization, as there were many IOs.
The elements of Public International Law were mutability and dynamism, problematic and imperfect,
coordination, relativism, systematic, tension universalism vs, particularism and plenitude
(completeness).
IMPORTANT DEFINITIONS OF PUBLIC INTERNATIONAL LAW:
There are so many definitions: It’s difficult to have just one definition, as none of them is completely
perfect, but each is enough.
“the set of legal rules governing international relations between entities possessing international
personality, such as States and international organizations”
(subjects of international law- states, nation-states, IOs and individuals… What are individuals? Are
they subjects? Not yet.) Because of historical reasons some entities are subjects, the Holy See
(government of the catholic church). The Sovereign Order of Malta (cuerpo militar)
“laws, rules, and principles of general application that deal with the conduct of nation states and
international organizations among themselves as well as the relationships between nation states and
international organizations with natural and juridical persons.”
Example with the INTERNATIONAL treaties between Portugal and PIL.
International Law is a Legal System
- Despite it is institutionally deficient;
- Despite the absence of a legislature with universal body;
- Despite its lack of jurisdiction;
- Despite the doubts about its effectiveness;
- Despite its voluntarist and co-operative character (it depends on political will);
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Homogenous in culture, religion and ideology.
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43 states in 1914
, - Although it can prevent its own violation (like any other legal system).
What is more, it is a system of laws, not a random collection of rules: it is effective most of the time;
functions on a day-to-day level; it is observed as a c omplete legal system by its subjects.
(International Court of Justice, all of them must give consent). There are mechanisms to prevent and
end violations. States are bound by international rules if they’ve given their consent to be bound by
it
There are different ways, such a ratification of a treaty.
2. Characteristics of International Law.
● Subjects are NOT equal in practice
● States are equally sovereign
● Based on the consent of the States to assume obligations (through practice or through
agreements) (EXAM)
● Lack of compulsory jurisdiction
● Existence of remedies to prevent/stop violations
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● Existence of peremptory rules
The Treaty of Lisbon is the one who regulates the European Union.
Strasburg- EU Court of Human Rights
The Hague- International Criminal Court
- International Court of Justice
Difference between International Court of Justice and International Criminal Court: the criminal
court has jurisdiction over individual criminal responsibility while the court of justice has
competence over states.
3.Fundamental principles of modern International Law
Fundamental values of the International Legal System:
After the IIWW all States desired to lay the foundations of an International System more conducive
to peace and justice. The UN Charter collects the consent of the States for International Law.
Legal system:
-
Arts. 1 and 2 UN Charter; international treaty adopted (signed) in 1945 in San Francisco.
-
2625 (XXV)* UNGA Resolution: Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations; 2625: number of the resolution XXV-the period of sessions. 1970 is the year
in which it was adopted. All periods start counting since 1945. It contains all the principles of
the
- Helsinki final Act (CSCE, 1975): Revised, updated and expanded the principles.
*Number of sessions. General Assembly: One session per year so it was in 1970.
Articles 1 and 2 from the UN Charter:
Art. 1:
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
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They can EVER be violated.
, acts of aggression or other breaches of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and international law, adjustment or
settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
3. To achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4. To be a center for harmonizing the actions of nations in the attainment of these common
ends.
Art. 2:
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles:
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with
the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act
in accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures under Chapter Vll.
4. Principles of Modern International Law. (2625 (XXV) Resolution)
Constitutional principles of international law.
● Sovereign equality of States (Legally equal): At first European had more sovereignty.
● Good faith: how do you prove the absence of it? They do not talk about it. Vienna
Convention: good faith in the negotiation.
● Peaceful Settlement of Disputes (Freedom to use any peaceful way)
● Prohibition of the use of the force (except for self-defense and UNSC)
● Duty of cooperation
● Broad and generic. It is difficult to say that a state is violating this duty.
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