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XVI.

Public International Law


A. Concepts
1. Obligations erga omnes - refers to specifically
determined obligations that states have towards the
international community as a whole. In general legal
theory the concept erga omnes (Latin: in relation to
everyone) has origins dating as far back as Roman law
and is used to describe obligations or rights towards all.
In municipal law it has the effect towards all in another,
general context.
The concept is very important because in todays
structure of international society, composed of
independent entities giving rise, as a rule, to legal
relations on a consensual basis, erga omnes obligations
can further enable the International Court of Justice to
go beyond reciprocal relations among states based on
consent in further developing international law on the
basis of a natural law approach. By its very nature this
affects the freedom of state consent and the sovereignty
of states.
4 erga omnes obligations:
1) the outlawing of acts of aggression;
United Nations Charter Article 2, paragraph 4
states:
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 purposes of the United Nations.
aggression - the use of armed force by a State
against the sovereignty, territorial integrity or
political independence of another State, or in
any other manner inconsistent with the Charter
of the United Nations, as set out in the definition
(not all forms of illegal use of force amount to
aggression)
2) the outlawing of genocide;
Article 1 of the Convention on the Prevention
and Punishment of the Crime of Genocide
reads:
The Contracting Parties confirm that genocide,
whether committed in time of peace or in time of
war, is a crime under international law which
they undertake to prevent and to punish.
3) protection from slavery;
While the dictum on obligation erga omnes in
the Barcelona Traction case refers only to
slavery, it would be logical to assume that the
prohibition extends to the slave trade, since if
slavery is prohibited then there cannot be any
trade in slaves
4) Protection from racial discrimination
A convenient starting-point from which to
examine this obligation is the principle that all
human beings are equal (Ragazzi 2002: 118).
The Charter of the United Nations and the
Universal Declaration of Human Rights, as well
as many other international and regional
instruments and municipal law constitutional

provisions, provide for basic provisions on


equality. Racial discrimination is universally
rejected as an inadmissible derogation from this
principle of equality.
A decisive step in the emergence of a general
prohibition on racial discrimination was taken in
the 1960s with the adoption of the United
Nations Declaration on the Elimination of All
Forms of Racial Discrimination, and then again
in a Convention with the same title. Article 1,
paragraph 1 of this Convention defines racial
discrimination as follows:
Any distinction, exclusion, restriction or
preference based on race, color, descent, or
nationality or ethnic origin which has the
purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental
freedoms in the political, economic, social,
cultural or any other field of public life.
Recently added:
5) Prohibition of torture
Furundzija case, the International Criminal
Tribunal for Yugoslavia held that:
the prohibition of torture imposes upon States
obligations erga omnes, that is, obligations owed
towards all the other mem1q2gbers of the
international community, each of which then has
a correlative right. In addition, the violation of
such an obligation simultaneously constitutes a
breach of the correlative right of all members of
the international community and gives rise to a
claim for 1`compliance accruing to each and
every member, which then has the right to insist
on fulfilment of the obligation or in any case to
call for the breach to be discontinued.
6) to respect the right to self-determination
East Timor case : the right of peoples to selfdetermination is irreproachable, since it evolved
from the Charter and from United Nations
practice, and has an erga omnes character.
2. Jus cogens - a peremptory norm of general
international law accepted and recognized by the
international community of States as a whole, as a norm
from which no derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character.
Examples of jus cogens norms include: prohibition on
the use of force; the law of genocide; principle of racial
non-discrimination; crimes against humanity; terrorism;
and the rules prohibiting trade in slaves or human
trafficking.
3. Concept of ex aequo et bono (gap filling)
The ancient concept ex aequo et bono (what is good and
just) holds that adjudicators should decide disputes
according to that which is "fair" and in "good
conscience." Parties to international law disputes-both
public and commercial- ordinarily resolve disputes ex

aequo et bono only as an exception, not as the rule. The


vast majority of decisions are resolved according to the
parties' choice of law.'Any resort to ex aequo et bono
occurs only if the parties expressly choose it in
substitution for, or in addition to, their choice of law.

B. International and national law


International law branch of public law w/c regulates the
relations of States & other entities w/c have been
granted international personality.
- the law that deals with the conduct of
states & international organizations, their relations with
each other & in certain circumstances, their relations
with persons, natural or juridical.
C. Sources
Domestic sphere: constitution, legislative enactments &
case law (stare decisis)
International plane: complicated (no legislature, no
fundamental law, stare decisis n/a)
Art 38 Statute of the ICJ:
Primary Sources: (accdg to hierarchic value, w/ the
exeption of jus cogens)
1) International Treaties & Conventions
2) International Customs as evidence of a
general practice accepted as binding law
through persistent usage over a long period of
time. The custom must be:
i) Prevailing practice by a number of
states
ii) Repeated over a considerable period of
time
iii) Attended by opinio juris or a sense of
legal obligation
3) General Principles of Law rules derived mainly
from natural law, observed & recognized by
civilized nations (res judicata, prescription, pacta
sunt servanda, estoppel, ex aequo et bono [what
is good and just, provided parties agree]
Secondary Sources
1) Judicial Decisions generally of international
tribunals (not really sources but subsidiary
means for finding what the law is & whether a
norm has been accepte as a rule of international
law)
2) Writings of publicists w/c must be fair &
unbiased representation of international law by
acknowledged authorities in the field.
D. Subjects
1. States a state is a group of people,
living together in a fixed territory
organized for political ends under an

independent government, and capable


of entering into international relations
with other states
Elements:
1) People a group of individuals
of both sexes, living together
as a community. They must be
sufficient in number to
maintain & perpetuate
themselves.
2) Territory the fixed portion on
the earths surface occupied
by the inhabitants
3) Government must be
organized, exercising control
over & capable of maintaining
law & order within the territory.
It can be held internationally
responsible for the acts of the
inhabitants. The identity of the
state is not affected by the
changes in government
4) Independence/Sovereignty
freedom from outside control in
the conduct of its foreign (and
internal) affairs
2. International organizations
3. Individuals although traditionally,
individuals have been considered
merely as objects, not subjects of
international law, they have also been
granted a certain degree o
international personality under a
number of international agreements
E. Diplomatic and consular law p.675 - 681
F. Treaties p 682 -688
G. Nationality and statelessness p. 689-691
1. Vienna Convention on the Law of
Treaties
H. State responsibility 692-698
1. Doctrine of state responsibility
The state is under obligation to make
reparations to another State for the
failure to fulfill its primary obligation to
afford in accordance with international
law, the proper protection due to the
alien national of the latter state. The
state, may therefore, be held liable for
injuries & damages sustained by the
alien while in the territory of the state if:
1) The act/omission constitutes
an international delinquency

an outrage, bad faith, willful


neglect of duty or insufficiency
of governmental action, such
that every reasonable and
impartial man would readily
recognize its insufficiency or
inadequacy
2) The act/omission is
directly/indirectly imputable to
the State if it does not make
reasonable efforts to prevent
injury to the alien, or having
done so unsuccesfully, fails to
repair such injury
a) Acts of Govt officials
acts of primary agents
of the state are acts
of state w/c gives rise
to direct state
responsibility
a. Acts of high
administrative
officials = acts
of state
when acting
beyond the
scope of his
authority =
equivalent to
an act of a
private
individual
b. Acts of a
minor or
subordinate
official there
must be a
denial of
justice or
something w/c
indicates
complicity of
the state, or in
condonation
of, the original
wrongdful act,
such as
omission to
take
disciplinary
action against
the wrongdoer
b) Acts of private

individuals
3) Injury to the claimant State
indirectly because of damage
to its national
I. Jurisdiction of States
1. Territoriality principle The state
may exercise jurisdiction only within its
territory. Exceptionally, it may have
jurisdiction outside its territory
depending on the kind of jurisdiction it
invokes.
Gr: a state has criminal jurisdiction only
over offenses committed w/in its
territory
over
i) Continuing offenses
ii) Acts prejudicial to the national
security or vital interests of the
state
iii) Universal crimes
iv) Offenses covered by special
agreement (now obsolete)
2. Nationality principle and
statelessness
Nationality Principle the state has
jurisdiction over its nationals anywhere
in the world. This is based on the
theory that a national is entitled to the
protection of the state, wherever he
may be, and thus, is bound to it by duty
of obedience and allegiance. This
applies only to civil matters (not
criminal).
3. Protective principle State has
jurisdiction over acts committed abroad
(by nationals or foreigners) which are
prejudicial to its national security or
vital interests.
4. Universality principle state has
jurisdiction over offenses considered
as universal crimes regardles of where
committed and who committed them.
(universal crimes those w/c threaten
the international community as a whole
& are considered criminal offenses in
all countries)
5. Passive personality principle
State exercises jurisdiction over crimes
against its own nationals even if
committed outside its territory.