Public International Law

Dr Jacobs
Faculty o f Law
MMU
INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

• What is international law

• Private and Public
• Necessity
• Nature, Development and sources of
International Law
• 2hrs
International law

• International law is a system of treaties and

agreements between nations that governs how nations
interact with other nations.
• Private international law deals with disputes between
private entities, such as people or corporations, which
have a significant relationship to more than one nation.
• Public international law" concerns the relationships
between nations. These include standards of
international behavior, the laws of the sea, economic
law, diplomatic law, environmental law, human rights
law, and humanitarian law..
Sources of international law
• Some principles of public international law are
written, or "codified" in a series of treaties, but
others are not written down anywhere and are
known as “customary" laws.
• Many international laws are governed by treaties.
• Individual nations are expected to enforce the
law. There are a few international organizations
that enforce certain treaties.
• The most notable example is the United Nations,
which has 193 member states.
THE MAKING OF INTERNATIONAL LAW

• International law only comes into effect when states

consent to it. The general consent of the international
community can be founds in “state practice”- the conduct
and practices of states in their dealings with each other.
• The sources, or evidence of international law are those
things that international tribunals rely upon in determine
the content of international law.
• They have been influenced by a range of political and
legal theories.
 INTERNATIONAL LAW

• Statements or evidence of general consent can be found in

the decisions of the International Court of Justice, in
resolutions passed by the General Assembly of the United
Nations, in law making multilateral treaties, and in the
conclusions of international conferences.

• Unratified treaties and reports of international agencies,

such as the International Law Commission, are often cited
by legal writers as indicating a trend.
 INTERNATIONAL LAW
• This consensual view of international law was reflected in the
1920 Statute of the Permanent Court of International Justice, and
preserved in Article 38(1) of the 1946 Statute of the International
Court of Justice.

• Article 38(1) is generally recognised as a definitive statement of

the sources of international law, which lists the sources which that
court is permitted to use
• The list is regarded by most writers as being a reasonably
complete list and one that represents the sources that other
international courts should use as well.
 ARTICLE 38(1)(ICJ)
• The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it,
shall apply:
• International conventions, whether general or particular,
establishing rules expressly recognized by contesting
parties (parties in dispute)
• International customary law as evidence of a general
practice accepted as law
• General principles of law recognized by civilized nations
• Subject to the provisions of Article 59, judicial decisions
and the teachings of most highly qualified publicists of the
various nations, as subsidiary means for the determination
of rules of law.
 TREATIES AND
CONVENTIONS

• The international law equivalents of legislation are

treaties and conventions.
• Treaty : legally binding agreement between two or
more states.
• Convention : legally binding agreement between states
sponsored by an international organization such as
United Nations.
• Both are legally binding upon states because of a
shared sense of commitment, and because one state
fears that if it does not respect its promises, other states
will not respect their promises.
 CUSTOMARY LAW

Customary international is law is evolved from state practices

If there is a conflict between a rule of customary international
law and an Act of Parliament, the Act of Parliament prevails

Any rule of customary IL, which is inconsistent with a

British statute, will not be enforced in the British courts.

The domestic legislation will be upheld while the State will

incur liability on the international scene
• Even if the international community follows a practice and
recognises it as binding customary law, there are
circumstances when the rule will not apply to a particular
state.

• This happens when a state persistently objects to a practice

during its formative stages, and thus never becomes a party
to it.
• This can also happen after a customary rule has become
generally accepted, if a state is allowed by the international
community to deviate from the general practice
PERSISTENT
OBJECTOR
• Even if the international community follows
a practice and recognises it as binding
customary law, there are circumstances when
the rule will not apply to a particular state.

• This happens when a state persistently

objects to a practice during its formative
stages, and thus never becomes a party to it.
 Cont…
• The ICJ allowed Norway’s action because Norway
had been claiming the disputed waters since 1812
and because most countries of the world had never
objected.

• Thus, the acceptance by other countries, Norway was

excused from following a generally accepted
customary rule of international law.
 ANGLO-NORWEGIAN FISHERIES CASE

• UK sued Norway in the ICJ because Norway was

not allowing British fishing vessels to enter what
Norway claimed was its territorial waters and the
British claimed it is high seas.

• Norway was using a special rule connecting rocks

and islands in drawing its territorial boundaries that
was contrary to the general rule followed by most
countries.
SUBSIDIARY SOURCES OF
INTERNATIONAL LAW
• Subject to the provisions of Article 59, judicial
decisions and the teachings of most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
of law.

• Publicists: writings of legal commentators.

International tribunals do refer to their books
and articles for guidance in resolving particular
cases.
 Judicial Decisions
• Subject to the provisions of Article 59, judicial decisions and
the teachings of most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of
law.
• Examples:
• (a)   American Law institute which publishes the Restatement
(Second) on the Foreign Relations Law of the United States.
• (b)   Institute of International Law which publishes a collection
of Resolutions (like resolutions on human rights, terrorism etc.)
• (c)    Harvard University (in US), which publishes Research
drafts (drafts to research the international law).
• The decisions of international and municipal
courts and the publications of academics can be
referred to, not as a source of law as such, but as
a means of interpreting the law established in
other sources.

• In practice the International Court of Justice

does not refer to domestic decisions although it
does invoke its previous case-law.
• There is no rule of stare decisis in international
law.
 THE PRACTICE IN
INTERNATIONAL TRIBUNALS
Generally, the international tribunal regard municipal
laws as being subservient to international law.

Greco Bulgarian Communities Case: “It is generally

accepted principle of international law that in the
relations between states who are contracting parties
to a treaty, the provisions of their municipal law
cannot prevail over those of the treaty”.
A state cannot adduce as against another state its own
Constitution with a view to evading obligations
incumbent upon it under international law or treaties
in force.

International law treated as the superior law in

international tribunals.

States as having a general obligation to bring their

municipal law into compliance with the international
norms.
This can be seen in the case of Exchange of Greek
and Turkish Population Case
A state cannot adduce as against another state its
own Constitution with a view to evading
obligations incumbent upon it under international
law or treaties in force.

International law treated as the superior law in

international tribunals.

States as having a general obligation to bring their

municipal law into compliance with the
international norms.
This can be seen in the case of Exchange of Greek
and Turkish Population Case:
 RECOMMENDED
TEXTBOOK
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FURTHER READING
•International Law – 2020
•Rebecca Wallace (Author), Olga
Martin-Ortega (Author)