PUBLIC INTERNATIONAL

LAW 1
LECTURER: ISAAC ANSU DIABOUR
 THE NATURE OF PUBLIC INTERNATIONAL LAW

• THE CONCEPTS
• Until comparatively recent times, international law was regarded as a
system of legally binding notes and principles which regulated relations
exclusively between states. Thus, states were held to be the only subjects
of international law and the only entities possessing legal personalities on
the plane of international law. Only states could enjoy legal rights and also
be under legal obligation at the international level.
• For the purposes of international law, the word “State” is defined by the
Montevideo Convention on Rights and Duties of States as an entity which
exhibits certain qualities such as; An independent Government, a defined
territory, a permanent population, capacity to enter into relations with other
state.
• Other entities, such as natural persons or corporations, fell within the ambit of
International Law only by virtue of having a designated relationship with a state.
These other entities were regarded as objects of International Law. States were
regarded as being responsible of the actions or inactions of the state officials.
• Since the 1st World War, the concept of international law broadened to
include Public International Organizations (P.I.O) and individuals among
its subjects. Consequently, international organizations established by
agreement among states (treaties), such as the UN may also have certain
rights, obligations and capacities under International Law. Also,
individuals have become subjects of international law in certain fields as
states are increasingly concluding agreement, certifying and conferring
human rights and establishing direct individual responsibility for
International Crime.
• MODERN DEFINITION
• International law can now be defined as a body of rules and principles which
regulates relationship; among states and public international organization,
between states and individuals in the field of International Human Rights,
between the International Community and individuals who have committed
international crime. International law is frequently called “PUBLIC
INTERNATIONAL LAW” in order to distinguish from “PRIVATE
INTERNATIONAL LAW” which is sometimes called “CONFLICTS OF
LAW”.
• STRUCTURE OF INTERNATIONAL SYSTEM
The most striking system of international legal system is its decentralized
and conceptual character. In contrast to the domestic legal system, it’s not
possible to point to institutions endowed with identifiable executive and
legislative functions. This is not to say that international judicial organs have
compulsory jurisdiction on states.
• The absence of an international legislature does not however results in
international society being without the means of creating and modifying
international legal rules. International Law is primarily a system of
customary law, supplemented by rules and principles which are agreed
upon in treaties and conventions. These two sources of law are positive
international law in the sense that the norms which they create have been
chosen or agreed upon by state in their dealings with each other.
• SOURCES OF INTERNATIONAL LAW
• The two (2) main sources;
• Treaties and Conventions
• Customs
• Others;
• Judicial decisions/ Teaching of highly qualified personalities
• General principles
• Where the courts find no solution in the first two (2), they go to the second two (2).
• Customs
• The test of Article 38(1) of ICC practice is specific that is state practice must be general.
• In the Lotus Case, the PCIJ (Permanent Court of International Justice) rejected a submission that
the frequency with which states sought to prosecute criminal offences committed on high seas
aboard vessels flying another state’s flag was proof of customary law.
• The court was opined to several reported cases which contracted the alleged rule and which drew
no protest from the flagged state. Similarly, in the Anglo-Norwegian fisheries Case, the ICJ
rejected a British agreement that customary international law precluded drawing base lines
longer than ten miles across the bays for the purpose of mapping territorial sea; there was too
much state practices which was inconsistent with Natural Justice (principle)
• The asserted rule to regard itself as reflecting a general practice to
constitute custom, it must be in accordance with constant and uniform
(Asylum Case).
• Does this mean that these need to be an absolute conformity among states
before a practice can be regarded as general for the purposes of
establishing a customary law of international law? A practice can be
regarded as general even if it’s not universally accepted: there is no
precise formula to indicate how wide spread a practice can be but it
should reflect a wide acceptance among the states particularly involved in
the relevant activity.
THE GENERAL PRINCIPLES OF LAW
• The very existence of the general principles as a source of international law
indicates that treaties and custom do not provide an exhaustive source of legal
norms in international law. The general principles are merely recognized by
civilized nations, and are not enacted or consented to by them. This is referred
by the fact that Art 38(1) of the ICJ status provides separate authorization for
the ICJ to decide cases ex aequo et bono (In Equity or Fair) that is; by
reference to law legal conception equity and fairness. Other examples of
general principles are certain principles of procedure like Natural Justice (audi
alteran Partem), the good faith principle and the principle of Res Judicata.
• The general principles of law provide a reservoir from which gaps in the corpus international law
may be filled. It is worthy to make reference to the fact that recognition to the general principles is
by nations and not by states. This terminology is not without significant states are the international
legal entities which are still the principal subjects of rights and duties to the international law.
Nations, by contrast are the people themselves. The general principles of law recognized by
civilized nations re-enforces the view that international law should properly be regarded as “a
complete system”, that is, that every international situation is capable of being determined as a
matter of law and that the international court and tribunals may not pronounce a non liquet. To
pronounce a non liquet (not clear) is to invoke the absence of a clear legal rule applicable of a
dispute: as a reason for declining to give judgment. Apart from “United Nations” in the charter the
word “Nations” is only used in Article 38(1) in the charter. This is because of its significance.
• JUDICIAL DECISIONS / TEACHINGS OF HIGHLY
• Article 38(1) (d) of ICJ statute states that judicial decisions are among the
subsidiary means for determining of the rules of law. This means that judicial D.
are not real source of international law but may be used to ascertain the existence
and scope of rules sources in treaties and convention international customs or
general principles.
• Nevertheless, as a subsidiary means of for the determination of law, the tendency
by judges to have regard to the reported decisions of previous cases is a recurrent
feature in most legal system, even if it’s not formalized in a legal dogma.
• As judge Azevedo remarked, in the Asylum case “it should be
remembered that the decisions in a particular case have deep
repercussions particularly in international law, because views which has
been confirmed by those decisions acquire a quasi-legislative value, in
spite of the legal principle to the effect that the decisions have no binding
force except between parties in respect of a particular case”.
 THE RELATIONSHIP BETWEEN INTERNATIONAL
AND DOMESTIC MUNICIPAL LAW

• INTRODUCTION:
• International law deals with the external relations of states; whereas
constitutional law deals with the legal structure of a state and its internal
relations with its citizens and other persons present of its territory. Both are
concern with the problem of regulating state power.
• One important branch of constitutional law is that the national law relating to
treat making power of a state so too the procedure for extradition of a criminal
from one state to another. These operate base on international and constitutional
level.
• These are two approaches in dealing with the issue of the relationship between
international and domestic municipal law, namely the Monist and Dualist approaches.
The standard treaties and convention leave the issues of implementation of international
treaties to each state, that is there is no general rule in international law that treaties have
direct effect in municipal law, but some states by virtue of their member of supranational
bodies allow direct incorporation of rights or enact legislation to honor their
international commitment. Hence, a citizen (national) in those states can invoke the
jurisdiction of local courts to enforce rights granted under international law whenever
there is an incorporation. If there is no direct effect on legislation. END OF QUESTION
• There are two theories to justify the court incorporating International Domestic Law
• MONISM
• This theory characterizes international law and municipal law as a simple
legal system with municipal law subordinate to international law. E.g. In the
Netherlands, all treaties and orders of international organizations are
effective without any action being required to convert international law into
municipal law. The consequence is that treaties in the monist system
limits or extend the powers of the Dutch government. In States adopting
this theory, the local courts automatically accept jurisdiction to adjudicate
law suit relying on international law rules and principles.
• DUALISM
• This theory regards international law and municipal law as separate system so that the domestic court
can only apply international law either when it has been incorporated into municipal law, for example in
the United Kingdom, a treaty is not effective until it has been incorporated at which time it becomes
enforceable in the court by any private citizens, and where appropriate even against the U.K.
government.
• Otherwise, the courts have discretion to apply international law where it doesn’t conflict its
statutes or common law. The constitutional law principle of parliamentary supremacy permits the
legislature to enact law which inconsistent to international treaties even though the government may be
signatory to the treaty. In the United States for example; the Supremacy clause of its constitution makes
all treaties that have been ratified under the authority of the U.S. and customary law in effect, the
“Supreme law of the land” Article 6(2).
 THE LAW OF TREATIES

• THE LAW OF TREATIES

• The law of treaties is a branch of international law which regulates the
formation, application and termination of treaties. The primary instrument
which governs the law of treaties is the Vienna Convention on the Law
Treaties (VCLT). Until the entry into force in 1979, on the 27 th January
1980, the law of treaties was governed exclusively by customary
international law.
• DEFINITION OF TREATY
• VCLT Article 2(1)(a) defines treaty as: “treaty means an international agreement concluded
between states and in a written form and governed by international law, whether embodied in a
single instrument and whatever its particular related destination”.
• Thus, if an agreement meets all the requirements of Article 2(1)(a) it will be a treaty whatever
its formal destination. It must be noted however that an arrangement may constitute a treaty
even if it fails to satisfy all the afore mentioned criteria in the VCLT definition. In such a case
the treaty will be governed by customary international law (see article 3 of VCLT). A classical
example is a situation where intergovernmental organizations enter into treaties or territorial
units which are also state such as semi sovereign with a federal system of government.
• Agreement concluded between states and private entities such as companies incorporated under
domestic law of a foreign states are not ordinarily bound by international law. The authority is the
Anglo-Iranian oil case (United Kingdom V. Iran). In 1933 an oil concession agreement was
concluded between the Government of Iran and the Anglo-Iranian Oil Company. In 1951, laws were
passed in Iran for the nationalization of the oil industry. These laws resulted in a dispute between
Iran and the company. The United Kingdom took up the company’s case and instituted proceedings
before the Court. Iran disputed the Court’s jurisdiction. In its Judgment of 22 July 1952, the Court
decided that it had no jurisdiction to deal with the dispute. The parties may however be able to
internationalize such an agreement by stipulating either that international law is the contracts proper
law or that any dispute arising may be submitted to international arbitration; the authority is: Texaco
Overseas Petroleum Oil Company and California Asiatic Oil Company Vs. Libya. This does not
however trans force the contract into a treaty.
• The arbitrator found first that both under Libyan law and international law
the State has the power to make international commitments, including
those with foreign private parties. Such a commitment cannot be regarded
as a negation of its sovereignty, but, quite to the contrary, is a
manifestation of such sovereignty. As a result a State cannot invoke its
sovereignty to disregard commitments freely undertaken through the
exercise of this same sovereignty.
• CRITISM: IN A WRITTEN FORM
• Ideally, agreement between states should be in a written form for clarity and also accurately
prescribing the duties and obligations of the parties. However, the VCLT prescribes no
particular requirements for written form. Customary international law is similarly silent in
relation to the form of treaties. AEGEAN SEA CONTINENTAL SHELF CASE (GREECE
Vs. TURKEY (ICJ Rep 1978)). The ICJ had to consider whether an official joint
communique issue at the end of a meeting between the prime minister of Greece and Turkey
could constitute the binding international agreement. ICJ held that in determining what was
indeed the nature of the act or transactions embodied in the Brussels Communique, the court
must have regard above all to its actual terms and to the particular circumstance in which it
was drawn up.
• After constituting the communique in the light of the text, the court held
that the parties did not mean it to constitute an immediate commitment.
However, in the case concerning Maritime Delimitation and Territorial
questions between Qatar and Bahrain (Qatar Vs. Bahrain). The ICJ held that
ab exchange of letters between the heads of states of Bahrain and Qatar
constituted a binding international agreement having regard to their terms
and the circumstances of their preparations. In other words, only heads of
states and foreign ministers are deemed to be capable of representing a state
for the purpose of performing all acts in the process of completing a treaty.
• CRITISM :3: GOVERN BY AN INTERNATIONAL LAW
• Sometimes states conclude agreement among themselves and are free to
choose which law should govern the agreement. Where the state decides
that an agreement or contract, those binding is to be govern by a particular
law, principles and norms unknown to international law, principles and
norms unknown to international law, that agreement cannot be said to be a
treaty. Common among such agreements are contract of commercial
character. Example; sale of goods and property, leasing agreements etc.
• FORMATION OF TREATIES
We consider the rules governing accession to international treaties, distinguishing
between three situations: (i) Treaties for which acceptance of a new member requires
unanimous approval of the signatory states with an amendment of the original treaty
agreement (closed treaties); (ii) Treaties where acceptance of a new member is made
possible through the approval by a majority of the existing member states (semi-open
treaties); and (iii) Treaties where the original member states have agreed to leave the
treaty open for accession by other states (open treaties). Our analysis reveals the effect
of the choice of accession regimes on the evolution of the treaty membership and
content.
• RESERVATIONS
• A reservation is a device sometimes employed by states in the course of
oppressing their consent to be bound by a treaty. Article 2(1)(d) of the
VCLT defines a reservation as “a means of making a statement however
phrased or named, made by a state, when signing, rectifying, accepting,
approving, or acceding to a treaty, whereby it purports to exclude or
modify the legal effect of certain provisions of the treaty in their
application to that state”.
• Reservations provide the mechanism by which a state can tailor the terms of a treaty, whose
text has already been adopted to its own will. A state may choose to become party to a treaty
but only on condition that a number of its provisions are excluded or modify in the treaty’s
application to that particular state. It is to be noted that article 19(c) of the VCLT makes it clear
that a reservation that is incompatible with any led object and purpose will be …….. or void.
In the reservation to the genocide convention case (ICJ Report 1951). Some states have made
reservations to the convention for the prevention and punishment of the crime of genocide. The
issue of the ICJ was whether or not a reserving state can be regarded as a party to a convention
or treaty. The ICJ held that “a state which has made or maintain the reservation which has been
objected to buy one or more of the parties but not others can be regarded as being a party to the
convention; otherwise, the state cannot be regarded as being a party to the consention”.
• TERMINATION
• A treaty termination when all rights and obligations came to an end. This may
occur in a number of ways. Example; a bilateral treaty can be terminated by a
valid determination by one of the parties. A multilateral treaty on the other
hand may be terminated by a withdrawal. Note is to be taken in the variation of
terms used for termination of bilateral and multilateral treaty respectively that
is denunciation of withdrawal. Denunciation of bilateral treaty will result in the
termination of a treaty. Withdrawal from a multilateral treaty will not ordinarily
terminate the treaty but will terminate the withdrawing state participation
• QUESTION:
• The only true source of international law are treaties and customs. Discuss
(1000 words, 4 pages).
 SUBJECTS OF INTERNATIONAL LAW
• Introduction
• Some questions that are relevant to the study of international law include
who can create international law? Who has rights, duties, and powers
under international law? (or international legal personality); and who is
regulated (governed), directly or indirectly, by international law?
• Dixon – “A subject of international law is a body or entity recognized or
accepted as being capable, or as in fact being capable, of possessing and
exercising international law rights and duties”
• The terms “subjects of international law” refers to entities endowed with
legal personality, capable of exercising certain rights and duties on their
own account under the international legal system.
• According to Starke, the term “Subject of international law” means; an
incumbent of rights and duties under international law; The holder of
procedural privileges of prosecuting a claim before an international
tribunal; and The possessor of interests for which provision is made by
international law
• Oppenheim says that an international person is one who possesses legal
personality in international law meaning one who is subject of
international law so as to enjoy rights, duties or powers established in
international law. It also gives the capacity to act on the international
plane either directly or indirectly through the state.
 Theories regarding subjects of International
Law
1. Realist Theory (States alone are subjects of International Law)
• According to the orthodox positivist doctrine, states are the only subjects
of international law.
• According to Prof. Oppenheim, “the law of nations is primarily a law of
international conduct of states and not of their citizens”. If individuals
have any right then it can be claimed only through the states.
• The Jurists of this school believes that the states are the subjects of
international law, while individuals are the objects of international law.
Criticism of Realist Theory
• It is silent on the rights of the individuals and the international offences
for which individuals may be punished. In Reparation for injuries suffered
in the services of the UN case, the ICJ held “that the UN has the capacity
to bring an international claim against the State for obtaining reparation
when an agent of UN suffers injury.”
2. Fictional Theory (Individuals alone are subjects of International Law)
• In this theory, Jurists believe that Individuals are the only subjects of
international law as states do not have soul or capacity to form an
autonomous will. Prof. Kelson opined that the laws ultimately apply to the
individuals and are for the individuals alone. As per this theory, the
welfare of an individual is the ultimate goal of international law.
Criticism of Fictional Theory
• The primary concern of International law is the rights and duties of the
states. Individuals possess many rights under international law but their
capacity to enforce these rights is limited.
• In most of the cases, a state files the claims for the rights of the citizens. In
Mavromattes Palestine Concession case (1934), the PCIJ observed that “It
is an elementary principle of international law that a state is entitled to
protect its subjects”.
3. Functional Theory (States, Individuals and some non-state entities are subjects of
International law)
• The jurists with a moderate view criticize both of the above theories. These Jurists
believe that States, Individuals and certain non-state entities are subjects of
international law. Now, Individuals got right even against the states. An example of
this is the European Convention on Human Rights in 1950. Under International
Covenants on Human rights 1966, it is held that individuals can claim rights directly
under international law. In some cases, Non-state actors like Colonies and Protectorate
states are treated as subjects of international law.
International Organizations as subjects of International Law
• The advent of international organizations in the 20th Century is having
immense
• significance. There are different types of International organizations, some
are Global like the
• United Nations and others are regional like the African Union
 Individuals as subjects of International Law
• Modern states practices have accepted in a limited way that Individuals
have international legal personality. This position of the individual is not
equivalent to the states; still, individuals have got legal personality due to
many reasons. Individuals have got various rights at International law,
which gives them the confidence to be a part of it. The Universal
Declaration of Human rights, 1948, gives various rights to individuals at
an international forum.
 Conclusion
• Today in modern times, states are not the only subjects on international
law. They are still the main subjects but in changing character of
international law, international organizations, individuals and certain non-
state entities got the status of subjects in International Law. Now
Individuals can enforce their rights in certain capacity against the states.
Though, there is a wide gap which exists between the rights of the states
and individuals at the other end
 STATE AND ELEMENTS OF STATE
A State stands identified with its four essential elements:
1. Population:
• State is a community of persons. It is a human political institution.
Without a population there can be no State. Population can be more or
less, but it has to be there. There are States with very small populations
like Switzerland, Canada, and there are States like China, India and others,
with very large populations.
• The people living in the State are the citizens of the State. They enjoy
rights and freedom as citizens as well as perform several duties towards
the State. When citizens of another State are living in the territory of the
State, they are called aliens. All the persons, citizens as well as aliens,
who are living in the territory of the State are duty bound to obey the state
laws and policies. The State exercises supreme authority over them
through its government.
• There is no definite limit for the size of population essential for a State.
However, it is recognized that the population should be neither too large
nor very small. It has to be within a reasonable limit. It should be
determined on the basis of the size of the territory of the State, the
available resources, the standard of living expected and needs of defense,
production of goods and supplies. India has a very large and fast growing
population and there is every need to check population growth. It is
essential for enhancing the ability of India to register a high level of
sustainable development.
2. Territory:
• Territory is the second essential element of the State. State is a territorial unit. Definite
territory is its essential component. A State cannot exist in the air or at sea. It is
essentially a territorial State. The size of the territory of a State can be big or small;
nevertheless it has to be a definite, well-marked portion of territory. States like Russia,
Canada, U.S.A., India, China, Brazil and some others are large sized states whereas
Nepal, Bhutan, Sri Lanka, Maldives, Switzerland, Togo, Brandi and many others are
States with small territories. The whole territory of the state is under the sovereignty or
supreme power of the State. All persons, organizations, associations, institutions and
places located within its territory are under the sovereign jurisdiction of the State.
• Further, it must be noted that the territory of the state includes not only the
land but also, rivers, lakes, canals inland seas if any, a portion of coastal sea
—territorial waters or maritime belt, continental shelf, mountains, hills and
all other land features along with the air space above the territory. The
territory of the state can also include some islands located in the sea. For
example Andaman & Nicobar and Daman and Diu are parts of India. State
exercises sovereignty over all parts of its territory. Ships of the State are its
floating parts and Aero-planes are its flying parts. Even a States can lease
out its territory to another State e.g. India has given on lease the Teen
3. Government (Politically organized)
• Government is the organization or machinery or agency or magistracy of the
State which makes, implements, enforces and adjudicates the laws of the state.
Government is the third essential element of the State. The state exercises its
sovereign power through its government. This sometimes creates the
impression that there is no difference between the State and Government.
However it must be clearly noted that government is just one element of the
State. It is the agent or the working agency of the State. Sovereignty belongs to
the State; the government only uses it on behalf of the State.
• Organs of political organization:
• (1) Legislature—which formulates the will of State i.e. performs law-making functions;
• (2) Executive— enforces and implements the laws i.e. performs the law-application functions;
and
• (3) Judiciary—which applies the laws to specific cases and settles the disputes i.e. performs
• adjudication functions. Government as a whole is the instrument through which the sovereign
power of the State gets used. In ancient times, the King used to perform all functions of the
government and all powers of governance stood centralized in his hands. Gradually, however,
the powers of King got decentralized and these came to be exercised by these three organs of
the government: Legislature, Executive and Judiciary.
• Each of these three organs of the government carries out its assigned functions.
Independence of Judiciary is also a settled rule. The relationship between the
Legislature and Executive is defined by law and it corresponds to the adopted form
of government. In a Parliamentary form of government, like the one which is
working in India and Britain, the legislature and executive are closely related and the
latter is collectively responsible before the former.
• In the Presidential form, as is in operation in the U.S.A., the legislature and
executive are two independent and separate organs with stable and fixed tenures, and
the executive is not responsible to legislature. It is directly responsible to the people.
• Government is an essential element of State. However it keeps on
changing after regular intervals. Further, Government can be of any form
—Monarchy or Aristocracy or Dictatorship or Democracy. It can be either
Parliamentary or Presidential or both. It can be Unitary or Federal or of
mixture of these two in its organisation and working. In contemporary
times every civilized State has a democratic representative, responsible
transparent and accountable government.
4. Sovereignty:
• Sovereignty is the most exclusive element of State. State alone posses
sovereignty. Without sovereignty no state can exit. Some institutions can
have the first three elements (Population Territory and Government) but
not sovereignty. State has the exclusive title and prerogative to exercise
supreme power over all its people and territory. In fact, Sovereignty is the
basis on which the State regulates all aspects of the life of the people
living in its territory.
Sovereignty has two dimensions:
• Internal Sovereignty and External Sovereignty.
(i) Internal Sovereignty:
• It means the power of the State to order and regulate the activities of all
the people, groups and institutions which are at work within its territory.
All these institutions always act in accordance with the laws of the State.
The State can punish them for every violation of any of its laws.