TOPIC 1: INTRODUCTION OF PUBLIC INTERNATIONAL LAW

International Law (IL) National Legal System

Rights and duties of states themselves.
A set of rules to regulate states’ conduct with each
other.
Concerned: legal regulation of intnl intercourse of
states (‘SOVEREIGN’, ‘EQUAL’)
Should be no sovereignty above sovereign states
IL= horizontal legal system
- Lack supreme autorithy
- Centralization of the use of force
- Differents on (law
making/determination/enforcement)
Legal rights and duties of legal person (individual)
within a body politic.
There is a gov that can exercise supreme authority
(sovereign) over all persons & things within the
territory state
- Lawmaking (legislative)
- Law determination (courts & tribunal)
- Law enforcement (administration, police,
army)
Gov can make, determine & enforce law

Public International Law Private International Law

No predetermined court Courts are predetermined

Law is same for all states Law differs from state to state

Refers to law that governs the relations of States and
other subjects of IL amongst themselves, that is Public
international law.
Certain rules of private IL are embodied in
international treaties and may become part of public
IL
“private” to denote private transaction between indv
(+ companies & corporations)
“international” indicates that this law operates when
there are foreign element.
May involve “foreign elements” when:
- one party is a foreign national, the contract made in
a foreign country.
- in such situation it is not fair to only use local law
Merely part of the domestic law of State.

To avoid injustice, a system of law has developed for a local country to take consideration the relevant foreign
law.
- Local court has to select the applicable law (governing law) for the case.
- Local court has to settle a “choice of law” problem.
- Choice of law is to be done by referring to “rules of conflict of laws”
- These rules known as “private international law”
 INTERNATIONAL CLAIM
- Enforcement of IL for IL claim
- Claimed by injured states vs wrong states
- States does not claim they are above IL (indeed claim their action justified by IL)
- Most state obeyed the IL consistently
- Its function to resolve disputed questions on law and fact.

3 form of reparation under IL 1. Restitution: to put back like it never happen

2. Compensation: by paying back the damage
3. Satisfaction: by apologise/ acknowledgement of
violation
ENFORCEMENT OF INTERNATIONAL CLAIM
- It is more was of keeping peace than enforcing the law
- It is a law not because it can be enforced BUT it is generally accepted by the international community
- The enforcement is not the reason to regard it as a law.
- Eg: enforcement bodies, and Judicial enforcement

1. Peaceful means of enforcement

Article 2(3) of the Charter of the United Nations Obliges Members States to settle international disputes by
peaceful means
Article 33 of the Charter - Negotiation
- Enquiry
- Mediation
- Conciliation
- Arbitration (tribunal @ international court)
- Judicial settlement
Non-compliance (rarity) The enforcement is to be made through the Security
Council, the enforcement arm of the United Nations
2. Coercive means of enforcement
a) Non-military means (i) Self-help:

- Attempts to cure@prevent a perceived wrong by

their own action, rather than trough a mediated
process
- Legal remedy that allows subjects to take measures
that would be forbidden if not pursued for
redressive ends
- Since the establishment of the UN, self-help: to use
of force can be legal in so far as it forms part of a
legitimate claim in self-defence
- Article 51 of the Charter: the only lawful form of
self-help that involves the use of military force.

(ii) Retorsion (Tindakan balas):

- Retaliation for unfriendly, discourteous or unfair acts

of another state by acts of the same or similar kind.
- Not illegat, in fact it is within the competence of its
author.
- Eg:
 a) Disruption of diplomatic ties ( this lawful
because there is no obligation to have
diplomatic ties w another State).
b) Embargoes of various kind (trade arms, and oil
embargoes
c) Withdrawal of voluntary aid programs

(iii) Reprisal (BALAS DENDAM):

- Normally illegal but are rendered legal by a prior

illegal act committed by other state.
- In the Naulilaa case ruled that:
A reprisal is an act of self-help by the injured State,
responding after an unsatisfied demand to an act
contrary to international law committed by the
offending state.

Its object is to effect reparation from the offending

State for the offence

(iv) Countermeasures:

- Article 2(4) of the Charter: the prohibiton of force,

armed reprisals in time of peace are no longer
lawful.
- In the case of Air Services Agreement Case:
The term “countermeasures” substituted for
peaceful reprisals
(v) Sanctions:

-
Can be imposed by the Security Council include
“complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic,
radio and other means of communication, and the
severance of diplomatic relations.
REQUIREMENTS & EXAMPLES OF LAWFUL REPRISAL @ COUNTERMEASURES
Examples: - May be performed against anything that belongs to,
or is due to, the wrong-doer State or its citizens.
- Ships sailing under its flag may be seized,
- Treaties concluded with it suspended,
- Goods, or belonging to it or its citizens may be
seized.

Cases:
- Albania’s failure to honor an ICJ award of
compensation to Britain = Britain froze Albanian
monetary gold in the Bank of England.
- The nationalization of the Suez Canal = France and
Britain froze Egyptian assets.
 - US refused to honour an award in favour of Mexico
in a prior arbitration = Mexico withheld payment of
an arbitral award to the US
Requirements: Three requirements as laid down in the Naulilaa case:
- Prior wrong
- Notice
- Proportionality

Articles on State Responsibility reaffirm and add 2 more:

- Must not involve the use of military force
- Must not violate fundamental human rights &
peremptory norms of general IL (jus cogen)

b) Military means (use of force) (i) Prohibition of the use of force

- Article 2(4) of the Charter: all members of Security

Council shall refrain from the threat or use of force
against territotrial integrity……..
- The exception under this Article:
a) Right of self-defence under Article 51 of the
Charter (unilateral use of force)
b) Enforcement measures by the Security Council
under Chapter VII
(ii) Right of self-defense:

- 3 elements:
ARMED ATTACKED
NECESSITY OF SELF-DEFENCE
PROPORTIONALITY

- Article 51 of the Charter: a State can use military

force against another in self-defence if there is an
“armed attack” by other
- Cannot use self-defence in anticipation of an attack
(iii) Enforcement action by the Security Council:

- Security Council may take an enforcement action

with the use of military force by means of resolution
- Where there is a threat to the peace, a breach of
the peace or an act of aggression
 TOPIC 2: SOURCES OF PUBLIC INTERNATIONAL LAW

LAWS/CASES FACT OF THE CASE/EXPLAINATION

Article 38 of the Statute 1. The Court, whose function is to decide in accordance with international law such
of the International Court disputes as are submitted to it, shall apply:
of Justice
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; (TREATIES)

b. international custom, as evidence of a general practice accepted as

law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono (in justice & fairness), if the parties agree thereto

Article 38 of statute of ICJ – 1(a): INTERNATIONAL CONVENTIONS/TREATIES

Convention = Treaties - According to Article 26 of the Vienna Convention on the Law of Treaties
1969:
“Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”.

Treaty is law for parties. BIND.

- Usually an outcome of long negotiation

PRINCIPLES OF TREATY
- Maybe bilateral (between 2 states) or multilateral (many states)
- More likely to be respected
- It imposed obligations on state-parties
- Failure to conform with terms will incur international responsibility (unless
defence available)
1. It is obligatory
- No state can be bound by Treaty w/o giving consent to be bound
- Mode recognize: signature, ratification, accession
- Only party to Treaty are bound

2. When treaties codifies customary law

- Eg: Art 55 of of Convention on the Law of the Sea 1982 provides
recognition of the Exclusive Economic Zone
- The substance of obligation is same to parties or non-parties.

Interaction between ICJ articulated 3 ways by which treaty law may interact with customary law
treaty law and customary
law – A treaty may reflect customary law if it is established that the treaty rules:
North Sea Continental a) Is declaratory of @ codifies, a pre-existing rule of customary IL.
Shelf cases b) Has led to the crystallization of a rule of customary IL before the treaty
enters into force under the consensus formed through the process of
treaty negotiation.
c) Has given rise to a general practice that is accepted as law, thus generating
a new rule of customary IL.

North Sea Continental A dispute arose between the Federal Republic of Germany (“FRG”) on the one hand
Shelf cases – and Denmark & the Netherlands (D&N) on the other hand concerning the
delimitation (persempadanan) of the continental shelf in the North Sea.
a series of legal disputes
between several countries D&N argued although FRG was not a party to the 1958 Geneva Convention on the
regarding the delimitation Continental Shelf, the “equidistance principle” in Article 6(2) of the Convention
of their respective applied because the article embodied, or crystallized customary IL”
continental shelf
boundaries in the North
Sea.

The International Court of Justice (ICJ) considered and applied customary principles
related to the delimitation of maritime boundaries.

ICJ applied the principle of equidistance, allowing for adjustments in special

circumstances. The court emphasized an equitable solution, encouraging
cooperation between parties for resource exploration.

This case set important precedents in international law for maritime boundary
delimitation.

The parallel existence of - Nicaragua brought a claim against the United States alleging that the latter had
treaty rule and customary used armed force and intervened in its affair contrary to IL.
rule
- The US argued that the ICJ had no jurisdiction because US had made reservations
Nicaragua case about its acceptance of the ICJ’s jurisdiction that excluded disputes arising under a
multilateral treaty, specifically Article 2(4) of UN Charter which prohibits the use of
force.

- However, Nicaragua claimed that ICJ had jurisdiction because its claim was also
based on rules of customary IL.

Issue:
Whether customary rules on the use of force and intervention continued to bind
the parties in parallel with the obligations under the UN Charter so that the ICJ
could apply them despite US’ multilateral treaty reservation.

Held:
Customary rules did exist in parallel with treaty law.
 Article 38 of statute of ICJ – 1(b): INTERNATIONAL CUSTOMS
- Law evolved from practice or custom of state.
- Although Treaty can replace custom but still it has its own significance.

Gulf of Maine Case 1984
ICJ Rep. 246
Two elements of custom –
in book
(called as two-element
approach)
Continental Shelf ICJ ruled that:
(Libya/Malta)
Other elements of custom – in Dr’s slide
1) Customary law –
evolved from the practice
of the state.
2) Consistency of practice
“Custom is ideally suited to the development of general principles and always
available to fill the void should the detailed legal regime of a treaty fails to gain the
universal acceptance”
(1) STATE PRACTICE
(2) ACCEPTANCE OF THAT PRACTICE AS LAW (the so-called opinio juris)
- “Substance of customary law must be looked for primarily in the actual
practice and opinio juris of States”
- Practice alone is not enough. Nor can a rule be created by opinio juris
without actual practice.
- State practices include (but are not limited to) act and omissions, statements
made, etc.
- Consist of conduct of the State, whether in the exercise of executive, legislative,
judicial or other functions
- comprises both PYSHICAL & VERBAL acts. (not only what states “do” but also what
they “say”
- “INACTION” also may “UNDER THE CIRCUMSTANCES” count as practice.
- The relevant practice must be general: it must be sufficiently widespread,
representative and consistent
- Certain period may be necessary to establish State Practice
- Must be ‘reasonably consistent’.
- Lotus Case: it must be constant and uniform.

Nicaragua case ICJ HELD:

The court does not consider that for a rule to be established as customary, the
practice must be in absolutely rigorous conformity with the rule.

The court deemed it is sufficient that the conduct of States should in general be
consistent with such rules.

Anglo-Norwegian
Fisheries Case
(Degree of consistency
may vary according to the
subject matter).
Issue of fishing rights in the North Sea was brought before the ICJ by the United
Kingdom challenging Norway’s jurisdiction over fisheries in the area.
ISSUE: Conflicting claims of jurisdiction over fisheries in the North Sea between UK
& Norway
Norway claimed:
- exclusive jurisdiction over the fishery zone beyond its territorial sea
UK claimed:
- historic fishing rights in the area, dating back to medieval times

ICJ was asked to rule the validity of the lines of delimitation of the Norwegian
fishery zone
 ICJ RULED:
- Norwegian fishery zone was valid & that the UK had no historic rights to fish in the
area.
3) Generality of practice - The practice must be ‘fair general’ (for universal norm – as opposed to
‘local custom’/binding only a few state).
- Practice must common to significant number of state.
- That onerous customary law obligation may require more general practice
than a rule which gives a State limited privilege.

Anglo-Norwegian Practice must be generally accepted in the practice of state.

Fisheries Case:

North Sea Continental - indicate the most important practice that is “States whose interests are
Shelf Case: especially affected”

For example: The establishment of customary rules pertaining to the law of the sea
will be influenced more by the practices of coastal states and important shipping
states than by those of landlocked states.
Continental Shelf Court determined that after several significant maritime States had claimed EEZs,
(Libya/Malta) the EEZ had ripened into a rule of customary international law although a majority
of eligible coastal States had not yet claimed an EEZ.

*EEZ: Exclusive Economic Zone

A maritime zone extending 200 nautical miles from a coastal state’s baseline, within
which the state has special rights to explore, exploit, and manage the natural
resources in the water column on the seabed.
Frontier Dispute (Burkina Court held that uti possidetis was a general rule of customary IL, even though at the
Faso/Mali) time the principle was supported only in the practice of Latin American & African
States which did not constitute a majority of the International community.

Uti possidetis: The name of a procedure used in litigation about land. It came from
a praetorial edict that could be abbreviated “As you possess, so shall you possess”
4) Duration of practice - No clear guideline on time required for consistent practice.
- ‘Instant custom’ is possible – but would require very strong evidence.
- “Time element” is relevant

North Sea Continental Shelf Case:

“The length of time needed will vary from subject to subject.”
5) Opinio juris - A belief/opinion that it is a necessary law (obligatory nature of practice
rather than merely a habitual).
- Not enough to prove general, uniform and consistent practice only.
- State must recognize it as binding and feel legally obliged to do so.
- A belief that ‘an action is carried out as a legal obligation’.

- Lotus Case & North Sea Continental Shelf Case:

Opinio juris is an essential element to form international customary law.

BURDEN OF PROVING IN - Lies on party which invokes it.

CUSTOMARY RULE - Nature of burden depend on the subject matter of dispute.
 CAN CUSTOMARY LAW CHANGE?
- Yes but must be sufficient evidence that state practice contrary with the existing rules (supported by the
opinion juris
- But it is difficult to establish that the rule of jus cogen (compelling law) has been changed by contrary
state practice.
- Eg: customary prohibition of use of aggressive force/prohibition of genocide

RELATIONSHIP BETWEEN CUSTOM & TREATY LAW

a) Custom & Treaty are - Where CL and TL stipulate the same legal obligations.
complimentary - Party to treaty = BOUND to Treaty
- Non-part = BOUND by the custom
- But it could be party bound to BOTH
Nicaragua v USA Both US and Nicaragua were bound by prohibition on the use of armed force (UN
Charter and obligation under CL)

b) Custom & Treaty in i. If Treaty is LATEST than Custom = TREATY PREVAIL

conflict
ii. If Custom develop first:
- Might be custom prevail (especially to non-party)
- Normally ICJ will try to avoid the conflict between Custom and Treaty
Anglo-French Continental A dispute between United Kingdom & France over continental shelf boundary
Shelf Case 1979 between them in the central and western areas of the English Channel

ICJ recognized the principle that a coastal state has inherent rights in the
continental shelf that constitutes the natural prolongation of its land territory as
"the most fundamental of all the rules relating to the continental shelf".

ICJ also concluded that the continental shelf of any state must be the natural
prolongation of its land territory and must not encroach upon what is the natural
prolongation of the territory of another state
iii. General superiority of Treaty is displaced where rules of jus cogen
existed
- Art.53 (Vienna Convention on Law of Treaties 1969 - VCLT):
‘Treaty is void if, at the time of its conclusion, it conflicts with
peremptory norm of general principle of law’.

Jus cogen: - It refers to norms that are accepted by the international community of
states as a norm from which no derogation is permitted by way of
particular agreements.
- Examples of jus cogens norms include the prohibition of genocide,
maritime piracy, enslaving in general (i.e. slavery as well as slave trade),
wars of aggression and territorial aggrandizement, torture, and
refoulement
Rules of jus cogen of - It is so fundamental that they cannot be modified by Treaty
customary law - Art 64 of VCLT: Any Treaty provision, if conflict with rule of jus cogen is
void (regardless jus cogen develop b4/after the Treaty)

Eg:
- Prohibition of the use of armed force in international relation (Nicaragua
v US Case).
 - Sovereign equality of states; freedom of highseas; prohibition of
genocide; etc

Article 38 of statute of ICJ – 1(c): GENERAL PRINCIPLES OF LAW

- Recognized by civilized nations
- To exclude consideration of ‘primitive’ or ‘undeveloped’ legal system.
- Eg. Right of a legal person to go to court and settle dispute, right to be heard by court.
- The duty to provide “reparation” in the event of a wrongful act.

Chorzow Factory Case ‘A claimant is entitled to receive compensation for proven injury’.
(Germany v Poland) (1928)
PCIJ Ser.A No.17 A dispute between Germany and Poland over the ownership of the Chorzow
factory, which was transferred to the Polish treasury in 1920

Germany claimed that Poland had violated international law by transferring the
factory and sought reparation for the damages caused.

The case was heard before the Permanent Court of International Justice (PCIJ).
PCIJ held that Poland was responsible for expropriating the factory and was
under an obligation to pay compensation to Germany.

The PCIJ also established the principle that a state is responsible for acts of
government organs or officers under international law.

Barcelona Traction Case The court applied the concept of “lifting the corporate veil” to be found in
(Second Phase) national legal systems.

South-West Africa Case Principles of national law can be transplanted to the international level only
when they are appropriate to the international situation.

Article 38 of statute of ICJ – 1(d): JUDICIAL DECISION

- Subject to the provision of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
- JD are described as ‘subsidiary’ means to determine the law.
- The decision of court has no binding force except between parties of cases.
- Many JD accelerate the creation of customary law
By confirming the trend in state practice &
By discovering the necessary opinion juris
Anglo-Norwegian Fisheries Issue of fishing rights in the North Sea was brought before the ICJ by the United
Case Kingdom challenging Norway’s jurisdiction over fisheries in the area.
ISSUE: Conflicting claims of jurisdiction over fisheries in the North Sea between
(landmark case in history of UK & Norway
IL)
Norway claimed:
*This case is significant - exclusive jurisdiction over the fishery zone beyond its territorial sea
because it established the UK claimed:
principle that a state’s - historic fishing rights in the area, dating back to medieval times
sovereignty extends to the
waters adjacent to its coast
& that the coastal state has
the right to regulate &
exploit the natural resources
in those waters.
Tunisia v Libya
ICJ was asked to rule the validity of the lines of delimitation of the Norwegian
fishery zone
ICJ RULED:
- Norwegian fishery zone was valid & that the UK had no historic rights to fish in
the area.
To determine the principles & rules of IL were applicable to the delimitation as
between Tunisia & the Libyan Arab Jamahiriya of respective areas of continental
shelf appertaining to each.

ICJ concluded:
- Because the two nations shared a common continental shelf, physical
factors could not be used to help with delimitation.
- The court, guided by the “equitable principles” and taking into account a
number of variables, including the requirement to maintain a reasonable
level of proportionality between the areas awarded and the lengths of
the affected coastlines.

Article 38 of statute of ICJ – 1(d): WRITING OF PUBLICISTS

…… and the TEACHINGS of the most highly qualified publicists of the various nations, as susdiary means for the
determination of rules of law.

- Writings of the ‘most highly qualified publicist’.

- Subsidiary means to determine the rules of law.
- Eg. Writing of jurists such as Grotius, Vattel, Gentili etc.
- Like JD, this writing may have a direct impact on customary law – helping to establish the state practice.
- Use most in Foreign Office and legal department.
Spanish Zone of Morocco A dispute between Spain & Great Britain over claims of British subjects and
Claims Case (1925): British proteges against Spain for damage caused in the Spanish Zone of
Morocco.

Judge Huber warned that - writers are ‘frequently politically inspired’ and caution
must be exercised when the author has special interest in a particular matter.

ADDITIONAL SOURCES: RESOLUTIONS OF INTERNATIONAL ORGANISATIONS

- Principles regarding resolutions of International Organisations cannot be regarded as rules of law.
- However, it may accelerate the formation of customary and providing evidence of elusive opinio juris.

a) General Assembly - East Timur Case:

(UN) Rule: Resolution of GA is not binding (even adopted unanimously).

- However, Resolutions on internal working of United Nations are binding.

Eg. Resolution on admittance of new state; election on Security Council;
appointment of ICJ Judges.
b) Other bodies - Eg:
UN Security Council’s decision;
Organization of African Unity;
Organization of Islamic Conference and etc.
HIERARCHY OF THE 1. JUS COGEN
SOURCES 2. TREATY
3. CUSTOMARY INTERNATIONAL LAW
4. GENERAL PRINCIPLES OF LAW & OTHER SOURCES