PUBLIC INTERNATIONAL LAW ATTY.

GANCHOON

and customary international law is treated as part of national law as

Definition of Public International Law well. International law can be directly applied by a national judge, and
 Traditional definition is that it is a body or rules and principles of can be directly invoked by citizens, just as if it were national law. A
action which are binding upon civilized states in their relations to one judge can declare a national rule invalid if it contradicts international
another. States are the sole actors in this definition and, in the past, rules because, in some states, international rules have priority. In other
public international law dealt almost exclusively with the regulating states, like in Germany, treaties have the same effect as legislation, and
relations between states in diplomatic matters and in the conduct of by the principle of Lex posterior derogat priori ("Later law removes
war. the earlier"), only take precedence over national legislation enacted
prior to their ratification. 
 Today, sovereign states remain as the principal subjects of the In its most pure form, monism dictates that national law
international law; but they are now joined by the international that contradicts international law is null and void, even if it post-dates
organizations and even by individuals. international law, and even if it is constitutional in nature. From
a human rights point of view, for example, this has some advantages.
 Restatement (Third) of Foreign Relations Law of the United States, For example, a country has accepted a human rights treaty, such as
which the U.S Courts generally consider as the most authoritative the International Covenant on Civil and Political Rights, but some of its
work on the subject, defines international law as the law which deals national laws limit the freedom of the press. A citizen of that country,
“with the conduct of states and of the international organizations and who is being prosecuted by his state for violating this national law, can
with their relations inter se, as well as with some of their relations with invoke the human rights treaty in a national courtroom and can ask the
persons, whether natural or juridical. judge to apply this treaty and to decide that the national law is invalid.
They do not have to wait for national law that translates international
law.
 Scope of International Law
o Regulation of space expeditions.  Dualism
o Division of the ocean floor. Emphasize the difference between national and
o Protection of human rights international law, and require the translation of the latter into the
former. Without this translation, international law does not exist as law.
o Management of the international financial system.
International law has to be national law as well, or it is no law at all. If
o Regulation of the Environment.
a state accepts a treaty but does not adapt its national law in order to
o All the interest of the contemporary international and even conform to the treaty or does not create a national law explicitly
domestic life. incorporating the treaty, then it violates international law. But one
cannot claim that the treaty has become part of national law. Citizens
Theories of International Law cannot rely on it and judges cannot apply it. National laws that
contradict it remain in force. According to dualists, national judges
 Command theory never apply international law, only international law that has been
In the view of John Austin, a renowned legal philosopher, translated into national law.
law consist of commands originating from a sovereign and backed up "International law as such can confer no rights cognisable
by threats of sanction if disobeyed. In this view, international law is not in the municipal courts. It is only insofar as the rules of international
law because it does not come from command of a sovereign. Neither law are recognized as included in the rules of municipal law that they
treaties nor custom come from a command of a sovereign. This theory are allowed in municipal courts to give rise to rights and obligations".
has generally been discredited. The reality is that nations see The supremacy of international law is a rule in dualist
international law not as commands but as principles for free and orderly systems as it is in monist systems. Sir Hersch Lauterpacht pointed out
transaction. the Court's determination to discourage the evasion of international
 Consensual Theory obligations, and its repeated affirmation of:the self-evident principle of
Under this, international law derives its binding force from international law that a State cannot invoke its municipal law as the
the consent of states. Treaties are expression of consent. Likewise, reason for the non-fulfillment of its international obligations.
custom, as voluntary adherence to common practices, is seen as If international law is not directly applicable, as is the case
expression of consent. In reality, however, there are many binding rules in dualist systems, then it must be translated into national law, and
which do not derive from consent. existing national law that contradicts international law must be
 Natural Law Theory "translated away". It must be modified or eliminated in order to
Posits that law is derived by reason from the nature of man conform to international law. Again, from a human rights point of view,
International Law is said to be an application of natural reason to the if a human rights treaty is accepted for purely political reasons, and
nature of the state-person. Although the theory finds little support now, states do not intend to fully translate it into national law or to take a
much customary law and what are regarded as generally accepted monist view on international law, then the implementation of the treaty
principles of law are in fact an expression of what traditionally was is very uncertain.
called natural law.

Note: Some dissenters, however, see no objective basis for international

law, they see international law as combination of politics, morality and
self-interest hidden under the smokescreen of legal language. Public International Law Private International Law
(International law is law because it is seen as such by states and other -Governs the relationship between -More commonly known as conflict
subjects of international law. and among states and also their of laws
relations in the international -Is really a domestic law which deals
 Monist Theory organizations and individual person with cases where foreign law intrudes
Accept that the internal and international legal systems in the domestic sphere where there
form a unity. Both national legal rules and international rules that a are questions of the applicability of
state has accepted, for example by way of a treaty, determine whether foreign law or the role of foreign
actions are legal or illegal. In most so-called "monist" states, a courts.
distinction between international law in the form of treaties, and other
international law, e.g., customary international law or jus cogens, is
made; such states may thus be partly monist and partly dualist. 
In a pure monist state, international law does not need to be Brief Historical Development
translated into national law. It is simply incorporated and has effect
automatically in national or domestic laws. The act of ratifying an
international treaty immediately incorporates the law into national law;

GAMMAD, NATH
 PUBLIC INTERNATIONAL LAW ATTY. GANCHOON

II SOURCES OF INTERNATIONAL LAW

A. AS ENUMERATED IN ARTICLE 38(1) OF THE STATUTE OF THE

INTERNATIONAL COURT OF JUSTICE
 Article 38 is primarily a directive to the Court on how its should
resolve conflicts brought before it.

Sources of International law:

1. Customs/ Customary law

2. Treaties and other international agreements.
3. Generally recognized principles of law.
4. Judicial decisions and teachings of highly qualified publicists.

Custom or Customary Law

-means a general and consistent practice of states followed by them
from a sense of legal obligation. This statement contains the 2 basic
elements of custom: the material factor, that is, how states behave, and
the psychological or subjective factor, that is, why we behave the eay
we do.

Formal Sources – various processes by which rules come into

existence

Material Sources – concerned with the substance and content.

B. JUS COGENS
C. DECISION EX AEQUO ET BONO
D. RESOLUTIONS OF INTERNATIONAL ORGANIZATION
E. SOFT LAW

GAMMAD, NATH