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CORE CONCEPTSPUBLIC INTERNATIONAL LAW
Class 1.
- National/domestic law (law between state and citizens, vertical, there is a law-
making body)
- International law (law between states, horizontal, there is no central authority).
IL was invented in Europe. Europe in the late middle ages (15th and 16th centuries) was
characterized by both multiple levels of different allegiances and rights and obligations as
well as the universal political and religious forces of the Holy Roman Empire and the Catholic
Church. While an elaborate international legal structure did not yet exist, legal obligations
and contracts were nevertheless created in day-to-day relations of the communities at the
time, leading to numerous agreements on issues such as the conduct of war and the
exchange of prisoners of war. It is however not until the 17th and 18th centuries that we begin
to see the contours of a modern international legal system. The ‘birth’ of the international
state system is usually traced back to the 1648 Peace of Westphalia that brought an end to
the Thirty Years Wars that had ravaged continental Europe. The idea was to reduce the
powers of transnational forces, like empire and religion, and instead compartmentalize
territory and individuals into sovereign states. This established the state as primary source of
authority, paving the way for an increasing sense of allegiance among citizens to their
respective states of nationality. By seeking to create an international order derived form
agreed rules and limits and basing it on a multiplicity of states of equal legal importance,
Westphalia was a decisive turning point, and what had initially merely been conceived of as
a concept of order for war-torn continental Europa spread to the rest of the world and to
this day remains a key building block of IL.
In the interwar period the primary development was the creation in 1919 of the League of
Nations, an organization tasked with maintaining world peace. The period immediately after
the Second World War was a time of major achievements in IL. The League of Nations was
replaced by the United Nations (UN), which was entrusted with the maintenance if
international peace and security. The UN is built on solid ‘Westphalian’ principles and based
on respect for the principle of equal rights. For the most part, the post-Second World War
events described in the previous section were driven by the West, which used its dominance
in world affairs to create a rules-based international order that would be less prone to the
sort of economic protectionism and authoritarianism that led the world into chaos and mass
slaughter. The increasing international competition (non-western, China and Russia) means
that major states seem increasingly unable to reach agreement on ambitious collaborative
efforts to create new legally binding global agreement on important contemporary issues
,and instead opt for less ambitious non-binding global political agreements or legally binding
regional agreements with like-minded states (ex. BRICS).
The conception of the state as a national sovereign helps explain the primary purpose of IL.
The existence of a plurality of sovereign states provides the theoretical justifications for the
binding character of IL. The scope of IL is determined by the inadequacy of national law. The
content of IL, and thus the concrete answers to the questions that cannot be answered in
national law, on the other hand, must be found in IL.
The IL of coexistence (general IL) contains the legal answers to questions that are inherently
of interest to more than one state and required to separate the powers of the sovereign
states and thereby uphold peaceful coexistence. It merely seeks to ensure that states can
pursue their different and separate interests in a way that respects the sovereignty and
rights of other states.
The second substantive structure of IL is the IL of cooperation and it is here one finds the
legal answers to issues that are not inherently of interest to two or more states but which
have nevertheless been turned into matters of international concern through the adoption
of treaty.
IL is in its lack of an international police force and a mandatory judicial system that can
enforce the law. An aggrieved state is left with no choice but to adopt its own measures in
response to another state’s violation of IL.
Positivism is a law that is made by human beings. The note that the term positive does not
mean “good” in this context, but “man-made”. Definition of natural law, a law whose
content is set by nature and that therefore has validity everywhere. Natural law refers to the
use of reason to analyze human nature and deduce binding rules of moral behavior.
Dualism: two separate legal systems that operate independently; national legislation
adopted to give effect to IL.
Monism: a single and coherent legal system; IL directly applicable in national legal system.
Class 2.
Article 38 International Court of Justice:
1. International conventions, whether general or particular, …
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and the teachings of the most highly qualified publicists …, as
subsidiary means for the determination of rules of law.
1. International convention or Treaties.
The adoption of convention, or a treaty, is the most direct way for states to create rights and
obligations under IL. A treaty concluded by two states is called a bilateral treaty. Treaties
between larger groups of states are called multilateral treaties. When a treaty establishes an
international organization, it is referred to as a constituent treaty. These treaties create
international organizations with the competence to adopt legally binding instruments.
, Leading instrument on the law of treaties Vienna convention on the law of Treaties, VCLT.
Concentrates on the form of treaties and the formalities of the rules on their signature and
ratification. Art. 2.1(a) VCLT 1969:
"Treaty" means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.’
Remember that the VCLT, while it governs treaties, is itself also a treaty. So, States that are
not party to it are not bound to it (unless it reflects custom IL).
Formation of treaties;
Negotiations adoption of text expression of consent to be bound depositary
registration.
Who can adopt a treaty/ express consent to be bound?
Art 7(1)(a)(b): A person with full powers or someone considered to represent the State.
Art 7(2): By virtue of function considered to represent the state:
• (a) Heads of State, Heads of Government and MFA
• (b) Heads of diplomatic missions
• (c) Representatives accredited to international conference or to an
international organisation or one of its organs for the purposes of adopting
the text of a treaty
There are different ways a State can express consent to be bound (Art 11-17 VCLT). Three
main ways:
- Signature (Art VCLT)
- Ratification (Art VCLT)
- Accession (Art 15 VCLT)
The period between signature and entry into force, the state is obliged to refrain from acts
which would defeat the object and purpose of the treaty.
Pacta sunt servanda (Art 26 VCLT):
Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.
Lex posterior rule (time) Art. 30(3): same parties to both treaties later treaty prevails in
conflict.
Lex specialis (content) - exceptions – e.g. Article 103 UN Charter.
Treaty interpretation:
- Textual
- Historical
- Teleological (the purpose)
Art 19 VCLT allows reservations unless:
- the reservation is prohibited by the treaty;
- the treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
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