CHAPTER ONE

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

You should be familiar with the following areas

  • Concept of Public International Law
  • Nature and Scope of P.I.L
  • Sources of P.I.L

1.1  CONCEPT OF PUBLIC INTERNATIONAL LAW

Meaning of Public International Law

Public International Law is composed of the Laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with persons, whether natural or judicial. It is a distinct and self-contained system of law, independent of the national systems with which it interacts, and dealing with relations which they do sometimes effectively govern and sometime not. Since there is no overall legislature or law-creating body in the international political system, the rules, principles and processes of international law must be identified though a variety of sources and mechanisms.

1.2  NATURE AND SCOPE OF P.I.L

Nature

  • Natural Law

The nature of international law is similar to the natural law. This law is formulated with the consent of knowledge and applies to everyone. Although, one who violate this law does not get punished but anyhow he/she must bear the compensation of the destruction. This law is not the special principle law but also is equal to everyone. No one could escape away from its boundaries.

  • Universal in nature

International law is not only bounded by narrow circle, it also covers broad areas. It is applied in the different status, international organization and sometimes is even in persons. It also covers environment, weather, universe, seas and oceans even outside the boundary of the state, so it is a universal law. It is equally applicable to everyone

  • Evolved though the Consent of the States

International law is the result of concurrence will of the states and the gradual process of customary practices among the states. Almost all the states are binding by agreement, ratification, accession and approval to the international law.

  • No uniformity approaches

For a long time, there was a controversy about whether international law is really a law, or it is a branch of ethics or it is a weak law or even a vanishing point of jurisprudence. John Austin deny that the title law should not be used the international law because there is no authority to issue law, not backed by sanctions and no court to interpret it. Holland argues that it is a vanishing point of jurisprudence because its rule is uncertain and vague, no authority to enforce and interpret and UN charter article 2(7) states that a state cannot be interfered generally. Some other scholars deny these views and accept it as law but weaker than state law. This last view is regarded true in the present context.

1.3  SOURCES OF P.I.L

Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed.

Article 38 (1) of the Statute of the International Court of Justice listed out various sources, it require the Court to apply inter alia, (a) international Conventions “expressly recognized by the contesting states” and (b) “international custom, as evidence of a general practice accepted as law” To avoid the possibility of non liquest, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been “the general principles of the law recognized by civilized nations”. As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to “judicial decisions” and juristic writing “as subsidiary means for determination of rule of law”.

1.3.1        CUSTOM

Customary law refers to the Law of Nations. The Law of the Nations is composed of the legal norms that have developed though the interactions between states over a period of time. The concept implies that states are expected to carry out their affairs consistently with past accepted conduct. Customary law can change based on the acceptance or rejection by states of particular acts.

Article 38 (1) of the ICJ statute refers to “International custom” as source of international law, specifically emphasizing the two requirements of state practice plus acceptance of the practice as obligatory or opinion juris sive necessitates (usually abbreviated as opinion juris).

The custom is derived from the consistent practice of (originally) of Western states accompanied by opinion juris ( the conviction of states that the consistent practice is required by a legal obligation, constitute customary international law. Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.

Nicaragua v U.S. (1986)

Customary law may be source of international law in international disputes. It is separate from treaty law and convention law, as it must be applied even if the countries are parties to a treaty. The court held that it is no longer okay to settle disputes with force, a customary norm. It is to be noted that the use of force can be justified three ways;

  • Self defence
  • Enforcement under Ch. 7 of the UN Charter, or
  • Rules of necessity & proportionality, these were in existence before the establishment of UN

1.3.2        TREATIES

Treaty is term used to describe a variety of instruments, including conventions, agreements, arrangements, protocols, covenants, charters and acts. Treaty may be bilateral (between two countries) or multilateral (between three or more countries). The treaty text may provide for the manner by which it takes effect. Generally, treaties will enter into force when it has been signed and ratified by a certain number of parties. Parties to treaty may ratify a treaty with reservations or other declarations unless the terms of the treaty place restrictions on those actions.

Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. They can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organizations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them.

Article 38(1)(a), which uses the term “international conventions” concentrates upon treaties as a sources of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party. For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting no-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself

1.3.3        GENERAL PRINCIPALS OF LAW AS RECOGNIZED BY CIVILIZED STATE

In relation to principles as source of law, Article 38 of the ICJ Statute reads:

“The Court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply…”

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

The words “general principles of law recognized by civilized nations” have been interpreted in the following seven ways:

  • General principles of justice
  • Natural Law
  • Analogies derived from private law
  • General principles of comparative law
  • General principles of international law
  • General theories of law
  • General legal concepts

Article 38(1) (c), for example, speaks of general principles “recognized” by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organizations, although today the principles are regarded as established international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppels and equity have been employed in the adjudication of international disputes. For examples, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation and to rely upon that belief, may be stopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be one of the basic principles governing the creation and performance of legal obligations. Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This “equity as law” perception is reinforced by references to equitable principles in the text of the United Nations Conventions on the Law of the sea 1982, though this may be little more thatn an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as “general” signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather as sources of rules of direct application.

1.3.4        SUBSIDIARY

The UN Charter designates the ICJ as the international the ICJ as the international law court for the world. Its main mission id to settle disputes between nations and its holdings are the strongest statement of what international law is in particular situation. The ICJ has a dual jurisdiction: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction). Article 38 mentions three principal sources and mentions that “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.” Thus, apart from three principal sources of international law, the judicial decisions and juristic work can be used as some sort of subsidiary sources. This is recognized under the ICJ Statute and there some factors they can also prove as source or evidence of international law.

1.3.5        JUDICIAL DECISIONS AND JURISTIC WRITTINGS

According to Article 38(1) (d) of its Statute, the ICJ is also to apply “judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.” The article is very clear that the judicial decisions (not mentioned as national or international) and juristic work is a subsidiary means of determination of law. Thus, the decisions of international and municipal courts and publications of academics can be referred to, not as source of law as such , but as means of interpreting the law established in other sources.

The decisions that might be sources of international law are of three kinds:

  • Decisions of international judicial tribunals
  • Judicial decisions of state Courts
  • Decisions of international arbitral tribunals

Juristic works

The juristic works are generally evidence of law, rather than source of law. It is possible that the writing of a great jurist may become a source of law if it is subsequently embodied in customary rules of international law. There is only one exceptional case when juristic opinion assumes importance. Where are no established customary rules or treaty rules, juristic opinion may be considered as an independent source of law. The Privy Council in re Piracy Jure Pentium depended on juristic opinion in ascertaining whether actual robbery was an essential element of piracy at international law. Having seen that juristic opinion considered that actual robbery was not an essential in piracy Jure Pentium, they decided so.