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Apuntes para examen final de "Public International Law"
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- Public International Law
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- Universitat Ramon Llull (URL)
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PUBLIC INTERNATIONAL LAW – Final ExamUNIT 1
What is Public Interna1onal Law? à Way to solve disputes between countries and IOs
to ensure peace.
“Law created a*er the 19th c. when diplomacy was not enough between countries and
IOs in order to maintain peace”.
• This Law can be enforced. Has binding rules.
• Is fragmented in areas which respect the general rules or trea@es. Even though,
there are differences between them.
• Started from philosophical debates or discussions à CUSTOMS are a result.
PHASES:
• Intellectual infrastructure –theore@cal discussion–, but no poli@cal will.
• Starts with the crea@on of IOs aLer WWII.
• Between WWI-WWII à Starts emerging. Even if it was not effec@ve, was useful.
• 30 years ago à All globaliza@on is based on Public Interna@onal Law.
Basic ideas:
1. Interna@onal law is based on NATURAL LAW (there is a universal “jus naturale”)
à Rules have existed even when they were not created ac@vely.
2. It is based on the gradual development of universal principles of jus@ce that
develop via human agency.
3. The “CONSENT OF NATIONS” (consent of states) plays a key role in interna@onal
law. Everything that happens in IL (interna@onal law) is agreed within states, has
consent à All rules become binding via consent.
4. Absence of a centralised legislator/authority –who ensures the Law is followed
and respected– and adjudica@on system à Absence of a centralized power.
5. Obliga@ons can emerge through state prac@ce even in the absence of legisla@on
à It does not have to be wri_en to be binding.
a. CUSTOMS à Exists through the con@nuous prac@ce within the states. It
is not less important than wri_en rules because it has the same value,
making the system more complex.
6. STATEHOOD “Categoría de ESTADO” means that a state has sovereignty which
means that it is able to act on the interna@onal scene.
a. The states also have sovereignty over their territory (sea and air space
included).
b. Therefore, a STATE is considered as such when is able to act in the
interna@onal scene and when it has sovereignty over certain territories.
,ENFORCEMENT à Mechanisms that ensure the rule –the Law– is being followed. When
a rule is binding, generally, the rule is enforced. Therefore, has ENFORCEMENT
MECHANISMS.
However, in Public Interna@onal Law is more complex. Because the rules are
binding but, in some cases, are not enforceable (have no enforcement
procedure). Despite that, they are always binding regardless being enforceable
or not.
IOs à Is a crea@on of states in form of ins@tu@on through a treaty which is an expression
of consent of states. They can have legal capacity. In other words, they are a product of
states.
Actors in Interna@onal Law:
• STATES
• IOs
Sources of interna@onal law (Where to find the Interna@onal Law?):
1. Interna1onal conven1ons (trea1es) à Synonyms.
“WriIen agreement between states where obligaJons and rights are created,
also IO’s. There are no limits in what a treaty can create as long as is within
legality and does not confront states”.
§ They must have the consent of states so they can conserve their
sovereignty. They are difficult to be done because states must agree.
§ Can be done between two or more states.
§ ALer WWII has become the most important tool even if it is not more
valuable than the other sources.
UNIVERSAL TREATY à Contains rules that are binding for all or most states in
the world.
2. Interna1onal custom à They are not less important even though they are not
wri_en. Described as a con@nuous prac@ce that is perceived as binding.
§ Discussion à Applicable for countries that do not have that custom?
3. General principles of law à Different from INTERNATIONAL CUSTOMS.
4. Judicial decisions and teaching of most qualified publicists à Only applicable to
the ones implicated in the case.
5. Other sources:
a. Conclusions of interna@onal conferences: The final act or other
statement of conclusions of a conference of States may be a form of
, mul@lateral treaty, but, even if it is an instrument recording decisions not
adopted unanimously, the result may cons@tute cogent evidence of the
state of the law on the subject.
b. Resolu@ons of the General Assembly à UN General Assembly
Resolu@ons are not binding except with regard to some UN organisa@onal
ma_ers. However, when they are concerned with general norms of
interna@onal law, acceptance by all or most members cons@tute evidence
of the opinions of governments in what is the widest forum for the
expression of such opinions.
c. The wri@ngs of publicists
d. Codifica@on and the work of the interna@onal law commission
• There is no HIERARCHY of norms in Interna@onal Law.
• INTERNATIONAL LAW à More complex than na@onal law because of the lack of
centralized power and its developing through prac@ce –which creates the vast
majority–.
• Art. 38 of the Statute of the Interna@onal Court of Jus@ce and Art. 59 of the Statute
of the Interna@onal Court of Jus@ce –on the legal effect of judicial decisions (no
precedence)–:
, INTERNATIONAL CUSTOM
It is the generaliza@on of a con@nuous prac@ce within the States. Is one expression of
consent of the states.
Is there a general pracJce? à Yes.
Is it accepted as internaJonal law? à Yes.
• The generaliza@on as Law involves an evalua@on of whether the prac@ce is fit to
be accepted and it is generally accepted as Law.
o Therefore, a PSYCHOLOGICAL ELEMENT is needed. Because it is needed
to be a con@nuous prac@ce that is perceived as Law, as binding.
Example: OUTER SPACE à Is a space that is beyond the sovereign territory of a
country. States have no sovereignty there. However, the custom is that aLer 100
km the state is not responsible for what happens there. Therefore, just counts for
prac@ce.
• This can be assessed on the basis of different evidence of state prac@ce such as:
o Diploma@c correspondence
o Policy statements
o Press releases
o The opinions of government and legal advisers
o Official manuals on legal ques@ons (e.g., manuals of military law)
o Execu@ve decisions and prac@ces
o Orders to military forces
o Comments by governments on ILC draLs
o Legisla@on
o Interna@onal and na@onal judicial decisions
o Recital in trea@es and other interna@onal instruments in “all states” form
o Prac@ce of interna@onal organs
o Resolu@ons rela@ng to legal ques@ons in the United Na@ons organs
(especially the General Assembly)
Elements (flexible concepts):
1. Dura1on and consistency of prac1ce
a. Complete uniformity not required but substan@al uniformity – of a
considerable size or value substan@al funds– is à General recogni@on
that the RULE OF LAW is involved.
b. Long or even immemorial prac@ces are not necessary (in airspace
customs emerged fairly quickly).
c. Prac@ce should show a general recogni@on that a rule of law or legal
obliga@on is involved.
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