Public international law scope (13 slides)

public international law deals with the organization and behavior of states and international
organizations. Definition: J.P. Starke defines it as:

“International law may be defined as the body of laws which is composed for its greater part of
principles and rules of conduct which states feel themselves bound to observe and therefore do
commonly observe in the relations with each other”

Scope:

1. identifying states as the principal actors in the international legal system.

2. deals with the acquisition of territory (legal responsibility of states)

3. treatment of individuals within state boundaries.

4. maintenance of international peace and security. (In case of war, it has developed principles
to govern the conduct of hostilities and the treatment of prisoners)

5. International law is also used to govern issues relating to the global environment.

History of international law: (37 slides)

Ancients and roman empire:

Slide 1:

The history of international law examines the evolution of state practice and the doctrinal
developments in international law. In that respect, it is different from international private law and
comparative history of constitutional law.

Explanation: This slide introduces the field of international law and distinguishes it from related
areas of study such as international private law and comparative history of constitutional law.
International law refers to the legal rules and norms that govern the conduct of states and other
international actors in their relations with each other. It is a constantly evolving field, shaped by the
practices of states and the development of new legal doctrines and principles.

Proofs: One example of the evolution of state practice and doctrinal developments in international
law is the development of the concept of state sovereignty. Prior to the 17th century, it was common
for states to interfere in the internal affairs of other states, such as by supporting rebellious factions
or laying claim to territory. However, with the Peace of Westphalia in 1648, European states began to
recognize the principle of state sovereignty, which held that each state had exclusive control over its
own territory and internal affairs. This principle became a cornerstone of modern international law
and has been enshrined in numerous international treaties and declarations. Other important
doctrinal developments might include the establishment of the United Nations, the development of
international human rights law, or the growth of international trade law

Slide 2:

Although international law in the modern sense of the world has only existed since about the 16th
century, many historians of international law also take ancient history into account as a source for
the early development of legal principles.
Explanations: it mentions that although international law in the modern sense has only existed since
the 16th century, many historians of international law also take ancient history into account as a
source for the early development of legal principles.

The example is that the principles of the "Law of Nations" were already being discussed and written
about by Greek philosophers such as Aristotle and Plato. These ancient concepts eventually evolved
into modern international law, and studying the ancient origins of these legal principles can help
provide a better understanding of their development and evolution over time. So in summary, slide 2
is highlighting the importance of studying ancient history as a source for the development of modern
international law, and the example given is the ancient Greek philosophers who discussed and wrote
about legal principles that eventually evolved into modern international law.

Slide 3:

Important concepts are derived from the practice between Greek city-states and the Roman law
concept of jus gentium (which regulated contacts between Roman citizens and non-Roman people).

Explanation: This slide identifies two key sources of legal concepts and practices that have influenced
the development of international law: the practices of Greek city-states and the Roman law concept
of jus gentium.

Proofs: One example of the influence of Greek city-state practices is the idea of the "just war,"
which was first articulated by the ancient Greek philosopher Aristotle. This idea held that there were
certain conditions that must be met for a war to be considered just, such as having a just cause and
using proportionate force. This concept was later incorporated into international law through the
development of the law of armed conflict. Another example of the influence of Roman law is the
concept of diplomatic immunity, which was first granted to ambassadors by Roman law. This idea,
which held that diplomats should be immune from prosecution in the host country, has been
incorporated into modern international law through the Vienna Convention on Diplomatic Relations.

Slide 4:

The Roman Empire did not develop an international law, as it acted without regard to any external
rules in its dealings with those territories that were not already part of the empire.

Explanation: This slide notes that while the Romans developed a sophisticated system of law for
governing their own citizens, they did not recognize any external legal framework governing their
relations with other states or territories.

Slide 5:

explains that although the Roman Empire did not develop an international law, it did have laws that
governed the interactions between private Roman citizens and foreigners. These laws were called the
"jus gentium," which means "law of nations." The jus gentium codified some basic ideas of fairness
and attributed some rules to an objective, independent "natural law." This was in contrast to the "jus
civile," which governed interactions between Roman citizens. The concept of natural law meant that
certain laws were seen as universal and applicable to all people, regardless of their nationality or
citizenship. This idea was later developed and expanded upon by philosophers and legal scholars,
and became an important concept in modern international law.

Overall, the jus gentium is significant because it represents an early attempt to create laws that
govern the interactions between people from different nations or cultures.
Modern history (nation-state)

Slide 1: In the aftermath of the fall of the Roman Empire, Europe was fragmented into many different
independent states, which created a need for rules of conduct between these states. This was the
first time in history that such a large international community existed, and there was no dominant
power or religion to moderate their interactions.

Proof: The collapse of the Roman Empire led to the emergence of many different independent states
in Europe, such as the Holy Roman Empire, the Byzantine Empire, and various kingdoms and city-
states.

Slide 2: In the absence of a dominant power or religion to guide them, European states looked to
existing legal codes for inspiration. Many states drew from Justinian's code of law, which had been
developed during the Roman Empire, as well as the canon law of the Catholic Church.

Proof: Justinian's code of law was one of the most important legal codes in history, and it heavily
influenced the development of legal systems throughout Europe. The Catholic Church also played a
significant role in shaping the legal and political landscape of medieval Europe.

Slide 3: As international trade, exploration, and warfare became more complex, there was an
increasing need for common customs and practices that could facilitate communication and
cooperation between states. The Hanseatic League, a commercial and defensive confederation of
over 150 cities in what is now Germany, played a key role in developing many of these customs.

Proof: The Hanseatic League was one of the most important economic and political institutions in
medieval Europe, and its customs and practices helped to facilitate trade and communication
between states.

Slide 4: As states began to send ambassadors to foreign capitals and engage in formal diplomacy,
treaties became a useful tool for protecting commerce and establishing rules of conduct between
states. Additionally, the horrors of the Thirty Years' War led to a push for rules of combat that would
protect civilian communities.

Proof: The development of formal diplomacy and the use of treaties to regulate international
relations are well-documented in historical records. The Thirty Years' War, which devastated much of
Central Europe, led to widespread calls for better protections for civilian populations

Hugo Grotius: Slide 1: The slide introduces Hugo Grotius, a Dutch philosopher and jurist who is
considered to be the starting point for modern international law. Grotius lived during a time when
the natural law tradition was being challenged, and he believed that universal reason was the
foundation for natural law. This slide highlights the need for a more modern approach to
international law, which Grotius attempted to provide.

Slide 2: This slide highlights some of Grotius's key ideas about the rational principles underlying law.
Grotius believed that laws were derived from principles rather than imposed from above, and that
promises must be kept and harming others required restitution. These principles have become the
foundation for much of subsequent international law and demonstrate Grotius's commitment to
natural law and reason as the basis for legal principles.

Slide 3: Here, the slide explains that in addition to natural-law principles, Grotius also dealt with
international custom, which are rules of what "ought to be" done. This approach to international law
strengthened over time, demonstrating that Grotius's ideas were influential and formed the basis for
later developments in international law.

Slide 4: The final slide highlights the shift from religious doctrines and philosophies to man-made
laws, and the importance of the law of what "is" over the law of what "ought to be." This shift
represents the modernization of legal thinking, and the development of international law as a more
formalized, positivist system.

Overall, these slides provide an overview of Hugo Grotius's contributions to modern international
law, and demonstrate the importance of natural-law principles and reason as the foundation for legal
principles. The shift towards a more positivist approach to international law is also highlighted,
indicating the ongoing evolution of legal thinking and the need to adapt to changing circumstances.

Treaty of Westphalia:

The slides are discussing the development of modern international law. The first slide refers to the
Westphalian treaties of 1648 which established the principle of state sovereignty as a key aspect of
international order. The second slide explains that the earliest attempts at developing autonomous
theories of international law occurred in 16th century Spain, and the most prominent early
theorizers were Roman Catholics. The third slide highlights the significance of Grotius's treatment of
international law, which was based not only on natural law but also on the idea that states could
create binding rules of law among themselves.

League of nation:

Slide 1 explains the aftermath of World War I, where there was a growing need for rules of warfare
to protect civilian populations and to prevent invasions. The League of Nations was established to
prevent external aggression by enacting a treaty agreement that imposed economic and military
sanctions on member states that invaded or conquered other member states. This was an attempt to
curb aggression and maintain international peace and security.

Slide 2 discusses the establishment of the Permanent Court of International Justice, which was
created to resolve disputes between nations without resorting to war. Many nations also signed
treaties agreeing to use international arbitration to settle their differences instead of warfare.

However, slide 3 highlights that international law was not yet strong enough to deter aggression by
some nations. Germany, Italy, and Japan continued to engage in acts of aggression that went
unchecked by international law. It took a Second World War to finally end their aggression and
highlight the need for stronger international law to prevent future conflicts.

Post war era

Slide 1:

After World War II, the United Nations (UN) was created to promote international peace and
security, and to provide a forum for member states to cooperate on global issues. The UN Charter,
which outlines the purposes and principles of the organization, has been ratified by nearly all
member states. This demonstrates a strong desire to prevent another world war and to ensure that
international conflicts are resolved peacefully.

Slide 2:
The fact that nearly all nations in the world have voluntarily joined the UN and agreed to abide by its
charter shows the broad recognition of the importance of international cooperation and support. For
example, the UN Security Council has the power to authorize military action to maintain or restore
international peace and security, but this can only be done through a consensus among the Council's
permanent members. This demonstrates that even the most powerful nations recognize the need for
international agreement and consent before engaging in acts of war.

Slide 3:

International law is not just about the conduct of war, but also encompasses many civil rules that
govern international relations. The United Nations has played a critical role in establishing
international norms and standards in areas such as trade, human rights, environmental protection,
and intellectual property. Many of these rules have been incorporated into international agreements
and treaties that have been ratified by numerous countries. For example, the Paris Agreement on
climate change, which was adopted under the auspices of the UN, has been ratified by 196 parties,
demonstrating broad support for global efforts to address climate change.

Modern customary international law

The development of the concept of "consent" in modern international law is significant, as it has
expanded the scope of rules and principles that can be applied to states. The idea that a nation can
be bound by a rule simply by consenting to it, without having to formally sign a treaty, has allowed
for greater flexibility in the formation and evolution of international law. Moreover, customary
international law, which is based on state practice and opinio juris, has become an important source
of international law. This means that even if a country has not signed a treaty, it can still be bound by
customary international law if its actions indicate that it recognizes and accepts the rule.

For example, the prohibition of genocide is a customary rule of international law, and all states are
bound by it, even if they have not ratified the Genocide Convention. This is because the rule has
become an established norm of international behavior, and states are expected to follow it.

In addition, the formation of customary international law involves the participation of all states,
regardless of whether they have formally agreed to it. As new rules emerge, states have the
opportunity to accept, reject, or modify them, contributing to the ongoing evolution of international
law.

Overall, the concept of "consent" and the development of customary international law have greatly
expanded the reach and flexibility of modern international law, allowing for greater cooperation and
coordination among states in the pursuit of global peace and prosperity..

Modern treaty law:

The importance of treaties in modern international law cannot be overstated. Treaties are essentially
contracts between countries, and breaking them can weaken their effectiveness and erode trust
between nations. Therefore, there is a strong incentive for nations to take treaties very seriously.

Modern nations engage in a two-step procedure for entering into treaties: signing and ratifying.
Signing a treaty means that a country intends to enter into the agreement, while ratifying it means
that a country is now bound by it. Each country ratifies treaties its own way, with some requiring
parliamentary approval, such as the United States, and others requiring only executive action, such
as Canada.
To interpret modern treaties, the 1969 Vienna Convention on the Law of Treaties is widely accepted
as the standard. This convention emphasizes that treaties should be interpreted according to their
plain meaning, in the context of their purpose, and in good faith. Additionally, the preamble of a
treaty is used to spell out what the authors are trying to accomplish, making interpretation easier.

Overall, international law is more important than ever in the modern world. Even the most powerful
countries rely on it and seek to comply with it, as ignoring it can have serious consequences.

Sources of international law:(41 slides)

Edward Collins' statement refers to the different ways in which International Law is created. In other
words, the sources of International Law are the means or methods by which International Law is
developed and established. These sources include customary international law, treaties, general
principles of law, judicial decisions, and teachings of the most highly qualified publicists. It is
important to understand these sources of International Law because they play a critical role in
shaping and determining the content of International Law. They are also used to resolve disputes
between states and to interpret and apply International Law in practice. By understanding these
sources, we can gain a deeper understanding of the evolution of International Law and its role in
shaping relations between states.

Sources of international law can be divided into two types: formal sources and material sources.

Formal sources are the methods or procedures by which a rule of international law becomes valid
and enforceable. Examples of formal sources include treaties, custom, and the decisions of
international courts and tribunals. These formal sources are what give the rule its force and
authority.

Material sources, on the other hand, refer to the factors or events that give rise to a particular
international legal issue. For example, a conflict between two countries over a disputed border
would be a material source of international law.

When Professor Corbett talks about sources of international law, he means the different ways in
which international law is created and established. He breaks down these sources into four different
categories:

Causes of International Law: This refers to the social, political, and economic conditions that give
rise to the need for a particular law. For example, the desire of states to establish peaceful relations
with each other and resolve disputes peacefully might lead to the creation of international laws
governing the use of force.

Basis of the Rules of International law: This refers to the way in which international laws are
created. In general, international laws are created through the consent of states. For example,
countries might negotiate and sign a treaty agreeing to abide by certain rules.

Origin of the Rules of International law: This refers to the historical development of international
law. Some rules of international law have been established through long-standing customs and
practices, while others have been created through formal treaties and agreements.

Records or Evidences of International Law: This refers to the official documents, declarations, and
statements that serve as evidence of international law. For example, the decisions of international
courts and tribunals, as well as the statements made by governments and international
organizations, can be used as evidence of international law.

Article 38(1) of the Statute of the International Court of Justice lists the sources of international law.
These sources include international conventions, international custom, general principles of law,
judicial decisions, and teachings of highly qualified publicists. The article has been a traditional
starting point for discussions on international law sources. The Permanent Court of International
Justice, created in 1920, drafted the statute with the help of an advisory committee of jurists
appointed by the League of Nations. The article does not explicitly mention United Nations
resolutions, but they can be significant in international society and may even constitute a source of
law.

Article 38(1) of the Statute of the International Court of Justice lists the sources of international law
that the Court can apply when deciding disputes. The first source is international conventions,
which are treaties that create specific rules of international law that have been agreed upon by the
states that are parties to the treaty.

These conventions can be either general, which means that they apply to all states, or particular,
which means that they only apply to the states that have agreed to them. Treaties can create
particular or general rules of international law and can be either treaty contracts or law-making
treaties. Treaty contracts are agreements between a few states and create specific obligations only
between the signatories. Law-making treaties create obligations that can continue as law and apply
to a larger number of states. Since 1945, treaties have become an increasingly important source of
international law. Law-making treaties have been used to create obligations that apply to a large
number of states, such as the agreement to outlaw the use of torture, which was signed by 90 states.

North Sea Continental Shelf Cases (1969): The North Sea Continental Shelf Cases refer to a set of
legal cases in 1969 where the International Court of Justice (ICJ) dealt with a dispute between
Germany and Denmark on the delimitation of the continental shelf in the North Sea. The ICJ stated
that just because many states are party to a multilateral convention, it does not mean that the
convention is binding on non-parties. However, the existence of a multilateral convention can be
considered as evidence of customary international law.

In simpler terms, just because many countries have agreed to a certain set of rules in a convention, it
doesn't mean that those rules automatically apply to countries that didn't agree to them. However,
the fact that many countries agreed to those rules can be seen as evidence that those rules are
widely accepted and followed, and therefore they may form part of customary international law.

Normative states: Sometimes the term ‘law making treaties` is replaced by ‘normative`. Normative
treaties are those treaties which bind all states. Examples of normative treaties include treaties that
establish general standards, such as the International Covenant on Civil and Political Rights of 1966,
which sets out a wide range of human rights obligations that all states parties are bound to respect
and protect. Another example is the Antarctic Treaty of 1959, which created an internationally
recognized regime for the governance of the Antarctic continent.

International custom is one of the sources of international law, as stated in Article 38(1)(b) of the
Statute of the International Court of Justice. Here is a summary of key points related to international
custom:

Definition: International custom is evidence of a general practice accepted as law.

Criteria for the establishment of a customary rule: According to Judge Hudson, the following criteria
must be satisfied for the establishment of a customary rule: (a) continuous practice, (b) by several
states, (c) with reference to a type of situation falling within the domain of international relations.

Forms of evidence: The following classical forms of evidence of customary international law were
listed by the International Law Commission in 1950:

1.Treaties 2. Decisions of national and international courts 3. National legislation 4.Diplomatic

correspondence 5.Opinions of national legal advisers 6. Practice of international organizations

General custom: General custom refers to customary rules binding upon the international
community.

Regional customs: Regional customs are those applicable to a group of states or just two states in
their relations inter se.

In summary, international custom is a key source of international law and can be established through
a continuous practice by several states with reference to a type of situation falling within the domain
of international relations. Various forms of evidence, including treaties, decisions of courts, and
practice of international organizations, can be used to establish the existence of a customary rule.

General principal: article 38: Article 38(1)(c) of the Statute of the International Court of Justice
(ICJ) provides that the Court shall apply "the general principles of law recognized by civilized nations"
in cases where there is no treaty or customary international law applicable to the dispute.

General principles of law recognized by civilized nations refer to principles of law that are common to
most legal systems and are generally accepted by the international community as a whole. Examples
of such principles include the principle of good faith, the principle of equity, and the principle of res
judicata. For instance, the princi.ple of good faith requires that parties to a contract act honestly and
fairly towards each other, while the principle of res judicata prevents the same dispute from being
litigated more than once. When there is a dispute between states and there are no applicable
treaties or customary international law, the court or tribunal may apply these general principles of
law.

THE WRITING OF PUBLICISTS: Article 38 (1) (d) states that judicial decisions and the writings of
highly qualified publicists can be used as subsidiary means for the determination of rules of law,
subject to the provisions of Article 59 which clarifies that the decision of the court has no binding
force except between the parties and in respect of that particular case.

In other words, while the decisions of international courts and tribunals do not create binding
precedent, they can be used as persuasive authority for future cases. Similarly, the writings of highly
qualified publicists, such as legal scholars, can also be used to support or inform the development of
international law.

Some notable examples of legal scholars who have contributed significantly to the development of
international law include Hugo Grotius, Cornelius van Bynkershoek, and Emer de Vattel. Their
writings and ideas have helped shape the principles and rules of international law that are
recognized today.