Public international law 1

Public international law

Public international law concerns the
structure and conduct of sovereign
states, analogous entities, such as the
Holy See, and intergovernmental
organizations. To a lesser degree,
international law also may affect
multinational corporations and
individuals, an impact increasingly
evolving beyond domestic legal
interpretation and enforcement. Public
international law has increased in use
and importance vastly over the
twentieth century, due to the increase
in global trade, armed conflict,
The United Nations is responsible for much of the current framework of international law
environmental deterioration on a
worldwide scale, awareness of human
rights violations, rapid and vast increases in international transportation and a boom in global communications.

The field of study combines two main branches: the law of nations (jus gentium) and international agreements
and conventions (jus inter gentes), which have different theoretical foundations and should not be confused.
Public international law should not be confused with "private international law", which is concerned with the
resolution of conflict of laws. In its most general sense, international law "consists of rules and principles of general
application dealing with the conduct of states and of intergovernmental organizations and with their relations inter
se, as well as with some of their relations with persons, whether natural or juridical."[1]

“
It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all
the time.

” [2]
—Louis Henkin

Sources and scope

Public international law has three principal sources: international treaties, custom, and general principles of law. In
addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law"
(cf. Art. 38 of the Statute of the International Court of Justice). International treaty law comprises obligations states
expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the
consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is
required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been
looked to as persuasive sources for custom in addition to direct evidence of state behavior (and they are also
explicitly mentioned as such in Art. 38 of the Statute of the International Court of Justice, as subsidiary means for
the determination of rules of law). Attempts to codify customary international law picked up momentum after the
Second World War with the formation of the International Law Commission (ILC), under the aegis of the United
Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through
treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those
Public international law 2

states. General principles of law are those commonly recognized by the major legal systems of the world. Certain
norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with
no permissible derogations.
Public international law establishes the framework and the criteria for identifying states as the principal actors in the
international legal system. As the existence of a state presupposes control and jurisdiction over territory,
international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their
conduct with each other. International law is similarly concerned with the treatment of individuals within state
boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of
refugees, international crimes, nationality problems, and human rights generally. It further includes the important
functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and
the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war,
it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is
also used to govern issues relating to the global environment, the global commons such as international waters and
outer space, global communications, and world trade.
Whilst municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation),
international law is horizontal in nature. This means that all states are sovereign and theoretically equal. As a result
of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary
participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is
thought by many international academics that most states enter into legal commitments with other states out of
enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes,
"international law cannot exist in isolation from the political factors operating in the sphere of international
relations".[3]
Breaches of international law raise difficult questions for lawyers. Since international law has no established
compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as
managing breaches within a domestic legal system. However, there are means by which breaches are brought to the
attention of the international community and some means for resolution. For example, there are judicial or
quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the
United Nations, for example, created a means for the world community to enforce international law upon members
that violate its charter through the Security Council.
Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of
international organizations over the last century, they have in some cases been recognized as relevant parties as well.
Recent interpretations of international human rights law, international humanitarian law, and international trade law
(e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and
even of certain individuals.
Public international law 3

History
Beginning with the Peace of
Westphalia in 1648, the 17th, 18th and
19th centuries saw the growth of the
concept of the sovereign "nation-state",
which consisted of a nation controlled
by a centralized system of government.
The concept of nationalism became
increasingly important as people began
to see themselves as citizens of a
particular nation with a distinct
national identity. Until the mid-19th
century, relations between
nation-states were dictated by treaty,
agreements to behave in a certain way The public international law originates in the Peace of Westphalia in Osnabrück and
towards another state, unenforceable Münster (1648)
except by force, and not binding except
as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly
destructive, most markedly towards civilians, and civilized peoples decried their horrors, leading to calls for
regulation of the acts of states, especially in times of war.

Perhaps the first instrument of modern public international law was the Lieber Code, passed in 1863 by the Congress
of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the
first written recitation of the rules and articles of war, adhered to by all civilized nations, the precursor of public
international law. Part of the Code follows:
"Military necessity, as understood by modern civilized nations, consists in the necessity of those
measures which are indispensable for securing the ends of the war, and which are lawful according to
the modern law and usages of war. Military necessity admits of all direct destruction of life or limb of
armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests
of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the
hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and
obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of
sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country
affords necessary for the subsistence and safety of the Army, and of such deception as does not involve
the breaking of good faith either positively pledged, regarding agreements entered into during the war,
or supposed by the modern law of war to exist. (...But...) Men who take up arms against one another in
public war do not cease on this account to be moral beings, responsible to one another and to God.
Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering
or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does
not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of
deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of
hostility which makes the return to peace unnecessarily difficult."
This first statement of the previously uncodified rules and articles of war led to the first prosecution for war
crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville,
Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to
be punished by death in the aftermath of the entire Civil War.
Public international law 4

In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and
bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not
limited to, the Permanent Court of Arbitration in 1899; the Hague and Geneva Conventions, the first of which was
passed in 1907; the International Court of Justice in 1921; the Genocide Convention; and the International Criminal
Court, in the late 1990s. Because international law is a relatively new area of law its development and propriety in
applicable areas are often subject to dispute.

Conflicts between public international law and national sovereignty

The conflict between international law and national sovereignty is subject to vigorous debate and dispute in
academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the
light of international law and standards. Numerous people now view the nation-state as the primary unit of
international affairs, and believe that only states may choose to voluntarily enter into commitments under
international law, and that they have the right to follow their own counsel when it comes to interpretation of their
commitments. Certain scholars and political leaders feel that these modern developments endanger nation states by
taking power away from state governments and ceding it to international bodies such as the U.N. and the World
Bank, argue that international law has evolved to a point where it exists separately from the mere consent of states,
and discern a legislative and judicial process to international law that parallels such processes within domestic law.
This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all
civilized nations.
A number of states support very narrow interpretations of international law, including the People's Republic of
China, the military junta currently holding power in Burma. These states maintain that sovereignty—and thus what
some view as the basis of sovereignty, the ultima ratio regum, or last argument of kings (force and coercion, by
military or other means)—is the only true international law; thus seeing states as having free rein over their own
affairs and their affairs in the larger world. Other states oppose this view. One group of opponents of this point of
view, including many European nations, maintain that all civilized nations have certain norms of conduct expected
of them, including the prohibition of genocide, slavery and the slave trade, wars of aggression, torture, and piracy,
and that violation of these universal norms represents a crime, not only against the individual victims, but against
humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual
responsible for violation of international law, he "is become, like the pirate and the slave trader before him, hostis
humani generis, an enemy of all mankind"[4] , and thus subject to prosecution in a fair trial before any fundamentally
just tribunal, through the exercise of universal jurisdiction. Another group believes that states only commit to
international law with express consent, whether through treaty or customary law, and have the right to make their
own interpretations of its meaning; and that international courts only function with the consent of states.
Though the European democracies tend to support broad, universalistic interpretations of international law, many
other democracies have differing views on international law. Several democracies, including India, Israel and the
United States, take a flexible, eclectic approach, recognizing aspects of public international law such as territorial
rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being
subjects of public international law at all. Democracies in the developing world, due to their past colonial histories,
often insist on non-interference in their internal affairs, particularly regarding human rights standards or their
peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the
United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter.
Public international law 5

Interpretation
Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the
courts to decide what the law means. In international law interpretation is within the domain of the protagonists, but
may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by
consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes
of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end.
Insofar as treaties are concerned, the Vienna Convention on the Law of Treaties writes on the topic of interpretation
that:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose." (article 31(1))
This is actually a compromise between three different theories of interpretation:
• The textual approach, a restrictive interpretation, which bases itself on the "ordinary meaning" of the text; that
approach assigns considerable weight to the actual text.
• The subjective approach, which takes into consideration i. the idea behind the treaty, ii. treaties "in their context",
and iii. what the writers intended when they wrote the text.
• A third approach, which bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation
that best suits the goal of the treaty, also called "effective interpretation".
These are general rules of interpretation; specific rules might exist in specific areas of international law.

Enforcement
Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able
and willing to compel compliance with international norms), "enforcement" of international law is very different
than in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is
self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international
environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a
particular aspect of international law, the norm may actually change according to concepts of customary
international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of
international law and ostensibly the casus belli for the United States' declaration of war against Germany. By World
War II, however, the practice was so widespread that during the Nuremberg trials, the charges against German
Admiral Karl Dönitz for ordering unrestricted submarine warfare were dropped, notwithstanding that the activity
constituted a clear violation of the Second London Naval Treaty of 1936.

Enforcement by states
Apart from a state's natural inclination to uphold certain norms, the force of international law comes from the
pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of
law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through
diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact,
states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt
sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In
some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for
an injury, though this is a complicated area of law where international law intersects with domestic law.
It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of
the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack
occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and
unless) the Security Council takes measures to keep the peace.
Public international law 6

Enforcement by international bodies

Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General
Assembly for debate. The General Assembly cannot make binding resolutions, only 'recommendations', but through
its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that
it has the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or
acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to
act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for
other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat
to the Peace".
The Uniting for Peace resolution was initiated by the United States in 1950, shortly after the outbreak of the Korean
War, as a means of circumventing possible future Soviet vetoes in the Security Council. The legal significance of the
resolution is unclear, given that the General Assembly cannot issue binding resolutions. However, it was never
argued by the "Joint Seven-Powers" that put forward the draft resolution,[5] during the corresponding discussions,
that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what
the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council.[6]
[7] [8] [9]
The Soviet Union was the only permanent member of the Security Council to vote against the Charter
interpretations that were made law by the Assembly's adoption of resolution 377 A.
Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could
subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "Pacific Resolution of
Disputes." Such resolutions are not binding under international law, though they usually are expressive of the
Council's convictions. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter,
related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under
international law, and can be followed up with economic sanctions, military action, and similar uses of force through
the auspices of the United Nations.
It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the
Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary
responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the
United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice (ICJ) in
its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of
their language and intent.
States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice, located in
The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no
means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.
Some of the advisory cases brought before the court have been controversial with respect to the court's competence
and jurisdiction.
Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created
from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands
of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of June 2009,
there are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or
non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious
cases argued before the ICJ are always binding on the involved states.
Though states (or increasingly, international organizations) are usually the only ones with standing to address a
violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an
optional protocol that allows individuals who have had their rights violated by member states to petition the
international Human Rights Committee.
Public international law 7

International legal theory

International legal theory comprises a variety of theoretical and methodological approaches used to explain and
analyse the content, formation and effectiveness of public international law and institutions and to suggest
improvements. Some approaches center on the question of compliance: why states follow international norms in the
absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of
international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the
absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks
and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these
approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly
to analyse international law. Classical approaches to International legal theory are the Natural law, the Eclectic and
the Legal positivism schools of thought.

Natural law
The natural law approach argues that international norms should be based on axiomatic truths. 16th century natural
law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of
the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.

Eclectic or Grotian school

In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on
morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus
gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda,
that is, on the basis of the observance of commitments. On his part, Emmerich de Vattel argued instead for the
equality of states as articulated by 18th century natural law and suggested that the law of nations was composed of
custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the
Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of
states, became the fundamental principles of the European political and legal system and were enshrined in the 1648
Peace of Westphalia.

Legal positivism
The early positivist school emphasized the importance of custom and treaties as sources of international law. 16th
century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by
general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties
commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in
international law. The positivism school narrowed the range of international practice that might qualify as law,
favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the
political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will.
International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should be." Classic
positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments.[10]
Public international law 8

Branches of public international law

• Consular law
• Diplomatic law
• International aviation law
• International criminal law
• International environmental law
• International human rights law
• International humanitarian law
• International space law
• International trade law
• Law of state responsibility
• Rule according to higher law
• United Nations Convention on the Law of the Sea
• Use of force continuum
• Use of force

See also
• Chapeau
• Diplomatic recognition
• Environmental agreements
• Global administrative law
• International community
• International Court of Justice
• International Criminal Court
• International Criminal Tribunal for Rwanda
• International Criminal Tribunal for the Former Yugoslavia
• International Labour Organization
• International Law Commission
• INTERPOL
• International legal theory
• Hans Kelsen
• Laws of war
• Legal status of the Holy See
• List of international public law topics
• List of treaties
• Nationality
• Non-Intervention
• Personal jurisdiction over international defendants in the United States
• Prize law
• Sources of international law
• Sovereign state
• Territorial integrity
• Terrorism
• Third World Approaches to International Law
• UNIDROIT
• United Nations
Public international law 9

• United Nations General Assembly Sixth Committee (Legal)

• University for Peace
• World government

Notes
[1] Columbia Law School, McKeever, 2003 — Definition of International Law (http:/ / www. law. columbia. edu/ library/ Research_Guides/
internat_law/ pubint#Definition of International Law)
[2] Henkin, Louis (1968). How Nations Behave. pp. 47.
[3] Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976)
[4] Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)
[5] United States, United Kingdom, France, Canada, Turkey, Philippines and Uruguay
[6] United Nations General Assembly Verbal session 5 (http:/ / www. undemocracy. com/ A-PV. 299''Proces) on 1 November 1950 (retrieved
2008-04-13)
[7] United Nations General Assembly Verbal session 5 (http:/ / www. undemocracy. com/ A-PV. 300''Proces) on 2 November 1950 (retrieved
2008-04-13)
[8] United Nations General Assembly Verbal session 5 (http:/ / www. undemocracy. com/ A-PV. 301''Proces) on 2 November 1950 (retrieved
2008-04-13)
[9] United Nations General Assembly Verbal session 5 (http:/ / www. undemocracy. com/ A-PV. 302''Proces) on 3 November 1950 (retrieved
2008-04-13)
[10] Bruno Simma and Andreas L.Paulus "Symposium on method in International Law: The Responsibility of Individuals for Human Rights
Abuses in Internal Conflicts: A Positivist View" 93 American Journal of International Law 302 (April, 1999)

References
• I. Brownlie, Principles of Public International Law (7th edn Oxford University Press 2008) ISBN 0199260710
• P.-M. Dupuy & Y. Kerbrat, "Droit international public" (10th ed., Paris, Dalloz, 2010) ISBN 9782247088935
• E. Lawson, and ML Bertucci, Encyclopedia of human rights (2nd edn Taylor & Francis 1996)
• E. Osmanczyk, The encyclopedia of the United Nations and international relations (Taylor & Francis 1990)
• M. N. Shaw, International Law (5th edn Cambridge University Press 2003)
• Rafael Domingo Osle, The New Global Law (Cambridge University Press 2010)

External links
• Public International Law - Resources (http://www.dipublico.com.ar/english/)
• A Brief Primer on International Law (http://www.burneylawfirm.com/international_law_primer.htm) With
cases and commentary. Nathaniel Burney, 2007.
• American Society of International Law - 100 Ways International Law Shapes Our Lives (http://www.asil.org/
asil100/ways.html)
• Department of Public International Law, Graduate Institute of International and Development Studies, Geneva
(http://www.graduateinstitute.ch/law)
• American Society of International Law - Resource Guide (Introduction) (http://www.asil.org/resource/
ergintr1.htm)
• International Law Details (http://www.referenceforbusiness.com/encyclopedia/Int-Jun/International-Law.
html)
• International Law Observer - Blog dedicated to reports and commentary on International Law (http://www.
internationallawobserver.eu/)
• Official United Nations website (http://www.un.org.)
• Official UN website on International Law (http://www.un.org/law/)
• Official website of the International Court of Justice (http://www.icj-cij.org/)
• Opinio Juris - Blog on International Law and International Relations (http://www.opiniojuris.org/)
• United Nations Treaty Collection (http://treaties.un.org/Home.aspx)
Public international law 10

• UN - Audiovisual Library of International Law (http://www.un.org/law/avl)

Article Sources and Contributors 11

Article Sources and Contributors

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Image Sources, Licenses and Contributors

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http://en.wikipedia.org/w/index.php?title=File:1648_verhandlungen-rathaussaal-muenster-westfaelischer-friede_1-640x420.jpg  License: unknown  Contributors: Maksim, Man vyi, Matt314, UV

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