Lecture notes
Public International Law Notes - Nature & Function of International Law
- Module
- Public International Law
- Institution
- City University (City)
Public international law notes on the nature and function of international law
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PIL: L1 – Nature and Function of International LawInternational law doesn’t have a supreme court.
More decentralised system – no central law-making body
20th century introduced international courts
What is public international law?
Body of rules that govern relations between states
- Different to domestic legal system which deals with the rights of the citizens, a
more horizontal system between states.
Developed through treaty, custom and general principles
- Treaties: signed agreements between states (bilateral) or a group of states
(multilateral)
- Custom: developed through practice of states – through the behaviour of states
- General principles of law: principles common to domestic legal systems – EG:
good faith principal
- These are the main 3
Others:
Decisions of international organizations (e.g. UN Security Council decides that there
is a threat to international peace and security and wants certain sanctions placed on a
state, that is a binding legal decision – states must comply)
Decisions of international courts and dispute settlement bodies (e.g. International
Court of Justice)
Recommendations of international bodies (e.g. UN General Assembly)
Juristic writings – take into account writing of academics.
International law typically affects situations where one state will not be able to deal with
it by themselves – EG: climate change can’t be changed by just the UK
What does international law govern?
Trade and economic law
International environmental law
Human Rights law
Law of the Sea
Refugees and rights of migrants
The creation of states
Use of force
Outer space
Antarctica
Diplomatic and consular law
International humanitarian law (law of armed conflict)
International criminal law
Self-determination
Not an exhaustive list
Secondary rules of international law:
These are rules about international law
Types of rules:
- State responsibility – consequences of a breach of international law
- Law of treaties – how are treaties applied and enforced?
, - Sources of international law – what is international law’s content, and to whom
does it apply?
- Jurisdiction – when does international law apply? And to whom?
Is international law actually law?
Compared to domestic legal systems, international law lacks some elements
- No central law-making body (e.g. a legislature)
- No central law-interpreting body (e.g. a Supreme Court)
- Lack of democratic process in law-making
- Lack of enforcement powers – what happens if international law is violated?
Who determines whether a rule is violated?
- States routinely breach international law – no obligation to follow it.
But international law is still followed and enforced. Why?
- Problems with comparing international law and domestic legal orders
- Focus on sanctions overlooks the nature of ‘law’
- States use the ‘vocabulary’ of international law in their international relations
- "Almost all nations observe almost all principles of international law and almost
all of their obligations almost all of the time.” – Louis Henkin
- Reciprocity – states have an interest in ensuring that international rules are
followed
Is international law, international?
Western states are usually involved in the making of international law
International law has European/Western origins – does it apply to new states?
- For the most part, the new states claim to be bound.
Is it binding?
There’s a distinction between ‘Hard law’ (binding) vs ‘Soft law’ (non-binding)
Why is it binding?
- State consent: principle that states are only bound by rules to which they consent
(linked to principle of state sovereignty)
No states have regarded themselves as being completely outside the international
system
Peremptory norm (jus cogens) – certain principles of international law that are so
fundamental, states cannot create treaties to derogate them – E.g. prohibition of
genocide
Those subject to international law - to whom does international law apply?
States are considered to be the original makers and subjects of public international
law. But what about other entities/persons?
Individuals? Can an individual be bound by international law? E.g. international
criminal law
Corporations? Do international treaties apply e.g. to multinational companies
International organizations? To what extend is the UN or the EU bound by
international law?
Non-state entities? Armed rebel groups? Non-recognised states/territories? Non-
governmental bodies (e.g. International Committee of the Red Cross). Holy See?
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