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Public International Law Lecture notes
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Public International LawLecture 1: week 1
Nature and Development
Concept
Foundation
Development:
- peace and security
- Self determination
- HR
- international criminal law
- International law 21st century
Does international law permit Trump’s actions?
- Waterboarding is not allowed if it’s categorised as torture
- Imposing taxes on European, Chinese, Canadian is not allowed by WTO unless you
can argue for the justification —> WTO has compulsory jurisdiction; USA cannot
withdraw from proceedings
———
Use sources for the opinions/arguments/rules you have (where is the rule from? UN
charter?)
Exam: essay questions
———
Historical Development
• 1648 Peace of Westphalia: peace negotiations at ending of 30 and 80 year wars —>
significant because victory of secular authority; secular authority prevails over church
authority and it started the modern-day system of sovereign states (bit of an over
exaggeration) —> attempt to create collective security system to prevent war
• 1815 Congress of Vienna: Napoleon removed 1814, so congress was to make
arrangements for peace. Congress system established (major powers come to
conference when major political issues need to be discussed). Move from natural law to
Case law summaries: https://ruwanthikagunaratne.wordpress.com/
, positive law (law is made by humans instead of from nature or God; move from
subjective to objective). Move from feudal relations (obey the king and he gives security)
to national relations (national interest > personal interest)
Natural law: law is inherent and comes form nature (or God)
Positive law: people; authority makes the law, they determine what the rules are
• 20th century: multiple wars; used as a tool to gain power and settle disputes
• 1914-18 World War I
- 1919 Treaty of Versailles: blame on Germany and impose high reparations
- League of Nations: organisation rather than congress system
• 1939-45 World War II
- UN conference on International Organisation (San Francisco 1945)
- United Nations
—
Values and Purposes of Int Law
• Purpose: regulate international relations
• Substantive goals: peace and security, cooperation, trade, democracy, HR etc
• Positivism: goals should be within the law; anything can be law just look at what law
says
• Effectiveness: driven by reciprocity
Nature of Int Law
• Hugo Grotius ‘On the Law of War and Peace’ : first to systematically discuss these
issues and said laws would be laws even if God wouldn’t exist
• Cicero: where there is society there is law
• John Austin ‘Lectures on Jurisprudence’: law only exists by having a sovereign; is the
command of the sovereign = international law isn’t law it’s morality because no state is
sovereign over another
• Hans Kelsen ‘Principles of Int Law’ : law is coercion because of application and
enforcement; international law has sanctions. Didn’t believe in sovereignty.
Case law summaries: https://ruwanthikagunaratne.wordpress.com/
,• Thomas Hobbes ‘Leviathan’: everyone is equal, you need protection, in the absence of
an undisputed authority what you have is war
• John Locke ‘Second treatise of Government’: when you don’t have authority you lack
an established settled law and judges and execution
National legal systems: centralised authority with vertical relationship
International law: multiple authorities with horizontal relationship (based on consent)
Look at pp to know what of int law nature you need to know
Lecture 2: week 1
Sources of International Law
- Treaties
- Customary int law
- General principles
- Judicial decisions
- Writings of most highly qualified publicists
- Hierarchy in international law
- Soft law
Lotus Case
• Relevant because of the prevailing theoretical approach: positivism (authorities; some have it)
• International legal positivism: States are authorities which together make international law
• “The rules of law binding upon States therefore emanate form their own free will” (consent) ;
• conventions = treaties
• usages generally accepted = customs
Voluntarism = states voluntarily accept rules which bind them
Consensualism = the result of rules binding states are the result of consent and consensus
Article 38 Statute ICJ: sources
- Function: to decide disputes in accordance with international law; law already exists, ICJ has to
apply it
- How it decides: primary means (1(a-c)) and subsidiary means (1(d))
Case law summaries: https://ruwanthikagunaratne.wordpress.com/
, - ex aequo et bono: deciding not according to law but on justice and/or equity exclusively
(parties subject to court have to authorise it)
- Not mentioned:
1. binding decisions of int organisations
2. Unilateral declarations/acts of State (when State makes public announcement in a
legal manner this may create obligation for State to act in accordance with declaration
(Nuclear Test cases)
Treaties
• Vienna Convention on Law of Treaties
- EIF, validity, termination, applicability etc of treaties
- EIF: 1980
- Prepared by Int Law Commission (subsidiary organ of UNGA)
Definition
Treaty: art 2(a) VCLT
- International agreement: between States (unless it’s a contract; subjected to one legal system
of one of the parties) —> must be governed by international law
- Multiple instruments: exchange of letters can be a treaty
- Whatever its particular designation: name doesn’t matter (as long as States intended to make a
treaty legally binding on them)
Phases
1. Negotiations, Initialling (you put your initials as rep of government making text definitive),
Signature (you sign the treaty; official)
2. Consent to be bound (declarations sent to one location; a depository who then sends it
onwards) —> done through ratification, accession, approval (but depends on treaty on what
is required because its also possible that signature is consent to be bound; once treaty is
signed it EIF)
3. Entry into force
Qatar v Bahrain: minutes constituted a treaty
Cameroon v Nigeria: declaration signed by minister of FA and it constituted a treaty
Signature is important because it can make the treaty binding, but even when it doesn’t, Art 18(?)
says you have to not defeat the object and purpose before EIF
Observance/application
• Pacta sunt servanda: when you are a party to a pact you have to comply with the pact (Art 26,
Art 34-37 - when you are not party you don’t have obligations or rights under treaty)
Case law summaries: https://ruwanthikagunaratne.wordpress.com/
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