Public International Law

Module 1: Definition Of Internatinal Law

1.1 Nature:

1. Oppenheim (International Law by Lassa Oppenheim)

Definition:
Oppenheim defines international law as "the law of nations or the rules which determine the
conduct of states and other international persons in their relations with each other."

• He emphasizes the relations between sovereign states, making the law primarily
concerned with the interactions and behaviour of states and international
organizations.

• Definition is not complete and Eurocentric in nature.

2. H.L.A. Hart (Hart's Concept of International Law)

Definition:
H.L.A. Hart defines international law as "a system of rules that guides behavior between
states, but lacks the institutionalized coercive enforcement of municipal law."

• Hart highlights the absence of a central enforcement mechanism, which is a key

distinction between international law and domestic law. He also emphasizes the role
of custom and treaties as sources of international law.

3. Sir Ian Brownlie (Principles of Public International Law)

Definition:
Ian Brownlie defines international law as "a body of rules and principles of action which
are binding upon civilised states in their relations with one another."

• He suggests that international law governs the relationships between states and that its
sources include treaties, customs, and general principles recognized by nations.

4. Hugo Grotius (The Father of Modern International Law)

Definition:
Hugo Grotius defined international law as "the law of nature and nations, which is based
on the principles of justice, common interest, and mutual convenience."

• Grotius is considered the founder of modern international law, and he believed that
law could be discovered through reason, even without explicit agreements or codes.
His work laid the foundation for the idea that states are bound by certain universal
principles of justice, even in the absence of formal treaties.

5. Stark (G. Stark's View on International Law)

Definition:
G. Stark defines international law as "the body of legal norms that regulate the relations
between states, international organizations, and individuals in the international
community."

• Stark focuses on the broader scope of international law, recognizing the influence of
both state and non-state actors in global legal relations.

International Law refers to a set of rules, agreements, and treaties that are binding between
countries and govern their interactions. It regulates the conduct of states, international
organizations, individuals, and other actors on the global stage. The main aim is to foster
peace, cooperation, and the resolution of conflicts among states and international entities.

It is the body of rules that govern the relation between states.

Nature of International Law

• Definition: International law governs relations between sovereign states and other
international actors. It is distinguished from domestic law, which governs only within
a specific state.

• Characteristics:

o Sovereignty of States: International law respects the sovereignty of nations.

Each state has control over its own territory, but there are limits imposed by
international law (e.g., the prohibition of war).

o Consent-Based: States are typically bound by international law through their

consent, as they agree to treaties, conventions, or protocols.

o Voluntary Compliance: Unlike domestic law, where enforcement is a state

function, international law relies heavily on voluntary compliance.
Enforcement mechanisms are often weak but can be supported through
diplomatic pressure, sanctions, or military intervention by international bodies
like the United Nations (UN).

o Universal in Scope: International law applies globally to all states, regardless

of their power or size.

o Dynamic: It evolves with the changing international relations, global

challenges, and emerging issues (such as climate change, human rights, or
cybercrime).
ART. 38 of the Statute of the International Court of Justice

1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

• international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

• international custom, as evidence of a general practice accepted as law;

• the general principles of law recognized by civilized nations;

• subject to the provisions of Article 59, 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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.

The Court shall apply:

1. International conventions, whether general or particular, establishing rules expressly

recognized by the contesting States;

2. International custom, as evidence of a general practice accepted as law;

3. The general principles of law recognized by civilized nations;

4. Subject to the provisions of Article 59, 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. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.

Other Legal Instruments and Provisions

1. Rome Statute of the ICC (Article 21):

o The Court applies:

▪ The Statute and its rules.

 ▪ Applicable treaties and principles of international law.

▪ General principles of law derived from national legal systems.

▪ Previous decisions of the Court.

o The law must align with human rights principles.

2. Protocol of the African Union Court (Article 20):

o The Court applies:

▪ Treaties, customs, general principles, judicial decisions, and

scholarly teachings.

o It may decide cases ex aequo et bono if parties agree.

3. United Nations Convention on the Law of the Sea (Article 293):

o Courts apply the Convention and other compatible international laws.

o Can decide cases ex aequo et bono if agreed.

Hierarchy of Sources of International Law

1. Primary Sources:
o Treaties (Agreements between states).
o Customary International Law (State practices accepted as law).
o General Principles (Common legal principles recognized by states).
2. Secondary Sources:
o Judicial Decisions (Court rulings).
o Scholarly Teachings (Legal writings by experts).
3. Subsidiary Sources:
o Unilateral Acts of States (Protests, recognition, renunciation, notifications,
promises).
o Binding Decisions of International Organizations (Decisions from
international bodies like the UN).

Ius Cogens / Peremptory Norms (Hierarchy of Norms)

• Ius Cogens refers to peremptory norms of international law that cannot be violated:
 o Prohibition of the threat or use of force.

o Prohibition of genocide.

o Prohibition of torture.

o Prohibition of slavery.

o Prohibition of racial segregation.

• Vienna Convention on the Law of Treaties (Article 53):

o A treaty is void if it conflicts with a peremptory norm.

Legal Obligations from the UN Charter (Article 103)

• UN Charter obligations take precedence over other international agreements if there

is a conflict.

Subsidiary Sources of International Law

• Judicial Decisions and Legal Doctrine:

o The decisions of courts and writings of qualified publicists help interpret

and shape international law.

1.2: Sources of International Law

International law is derived from various sources, recognized by the International Court of
Justice (ICJ) as authoritative:

1. Treaties and Conventions:

o Formal written agreements between states.

o Example: The United Nations Charter, Geneva Conventions, Paris

Agreement on climate change.

2. Customary International Law:

o Practices that have evolved over time and are accepted as binding, even if they
are not codified in treaties.
 o Example: Diplomatic immunity, the prohibition of genocide.

3. General Principles of Law:

o Common principles recognized by civilized nations, such as the principles of

justice, equity, and good faith.

o Example: Pacta sunt servanda (agreements must be kept).

4. Judicial Decisions:

o Decisions made by international courts (e.g., the ICJ) and tribunals can serve
as a source of law and contribute to the development of legal norms.

o Example: International Court of Justice rulings on territorial disputes.

5. Scholarly Writings:

o The works of prominent legal scholars (jurists) help clarify or interpret

international law and can influence its development.

Relationship of International Law and Domestic Law

The relationship between international law and domestic (or municipal) law varies across
different countries, but several key concepts apply:

1. Monism:

o In monist systems, international law and domestic law are considered part of a
unified legal system. International treaties, once ratified, automatically
become part of national law without the need for additional legislation.

o Example: The Netherlands follows a monist approach.

2. Dualism:

o In dualist systems, international law and domestic law are separate.

International treaties must be incorporated into domestic law through national
legislation before they can be applied by courts.

o Example: The United Kingdom follows a dualist approach.

3. Supremacy of International Law:

 o In some countries, international law has supremacy over domestic law,
meaning that in the event of a conflict between international and domestic law,
international law prevails.

o Example: Countries that adhere to monist principles, such as some civil law
countries.

4. Effectiveness and Enforcement:

o Domestic courts may apply international law in situations where treaties or

customary law are relevant, but the direct application can be complicated if the
national constitution or laws are inconsistent with international obligations.

o Example: In dualistic countries, courts may not directly apply international

treaties unless they are explicitly incorporated into national law.

5. International vs. National Jurisdictions:

o There are distinctions between national legal systems (which apply domestic
law) and international legal systems (such as the International Criminal Court,
UN bodies, etc.).

o National courts may defer to international law or international courts for

specific disputes (e.g., international criminal law), but they also retain
authority to interpret and apply domestic laws in other matters.

International Law and Municipal Law:

. International Law vs. Municipal Law

• International Law: Regulates relations between sovereign states.

• Municipal Law: Governs relations between individuals within a state and between
individuals and the state.

2. Theories of Relationship

• Monism:

o Believes in a unified legal system where International Law is directly

applicable within national systems.
 o Monism I: Municipal Law is somewhat superior.

o Monism II: International Law is superior and prevails over national law.

• Dualism:

o International and Municipal laws are separate and independent.

o International Law needs transformation or incorporation into Municipal Law

to be applicable.

o Municipal Law is supreme within the state.

3. Transformation and Specific Adoption Theories

• Transformation Theory:

o International Law must be transformed to be applied in Municipal Law.

• Specific Adoption Theory:

o Treaties require specific legislation for national application.

• Delegation Theory:

o International Law delegates rule-making power to states.

4. Criticism

• Monism I: Theoretical and lacks practical application.

• Monism II: Utopian, doesn’t reflect reality.

• Dualism: Outdated, doesn’t address cases where international norms directly impose
obligations on individuals.

5. Emerging Trends

• International Law increasingly affects individuals directly.

• Some states (like Greece, Netherlands, Spain) adopt an internationalist approach,

while others (like the UK and France) prioritize national law.
MODULE 2: LAW OF SEA:

2.1 Convention on the Law of the Sea, 1982 (UNCLOS)

• Adopted in 1982, UNCLOS is the primary international treaty governing the use of
the world's seas and oceans.

• Defines maritime zones: Territorial Sea, Contiguous Zone, Exclusive Economic

Zone (EEZ), Continental Shelf, and the High Seas.

• Establishes navigation rights, overflight, fishing rights, resource exploration, and

environmental responsibilities.

• Reinforces principles of freedom of the seas, cooperation in marine conservation,

and dispute resolution.

2.2 Territorial Sea (Maritime Belt)

• Definition: The belt of coastal waters extending 12 nautical miles from a state's
baseline.

• Sovereignty: The coastal state has full sovereignty over airspace, seabed, and subsoil
within this zone.

• Rights of Foreign Vessels:

o Innocent Passage is allowed if it is continuous, expeditious, and not

prejudicial to the peace, security, or order of the coastal state.

o Activities such as fishing, unauthorized research, and military exercises are

not allowed.

• Coastal State's Duties:

o Allow innocent passage.

o Provide navigation aids.

o Protect the marine environment.

2.3 Contiguous Zone

• Definition: A maritime zone extending 24 nautical miles from the baseline (12 nm
territorial sea + 12 nm contiguous zone).

• Purpose:

o Coastal states can enforce laws related to customs, taxation, immigration,

and sanitation.

o They can prevent and punish violations that occur within their territorial sea.

2.4 High Seas

• Definition: Areas beyond any national jurisdiction.

• Governed by International Law: No state can claim sovereignty.

• Principles:

o Freedom of Navigation

o Freedom of Overflight

o Laying submarine cables and pipelines

o Fishing and scientific research

• Regulations:

o Flag states must ensure vessels comply with international regulations.

o Cooperation in marine resource management and anti-piracy efforts.

2.5 Continental Shelf

• Definition: The seabed and subsoil of the submarine areas extending beyond the
territorial sea, up to 200 nautical miles or more if the natural prolongation continues.

• Coastal State Rights:

 o Exclusive rights to explore and exploit natural resources (oil, gas, minerals,
and sedentary species).

o Obligation to share revenues from resources beyond 200 nm with the

international community.

2.6 North Sea Continental Shelf Case (1969)

• Key Points:

o A dispute between Germany, the Netherlands, and Denmark over continental

shelf boundaries.

o International Court of Justice (ICJ) ruled that the equidistance principle is

not an automatic rule.

o Instead, equitable principles must be applied to achieve a fair division.

2.7 Exclusive Economic Zone (EEZ)

• Definition: Extends 200 nautical miles from the baseline.

• Rights of the Coastal State:

o Exclusive rights to explore, exploit, conserve, and manage natural resources

(both living and non-living).

o Right to establish artificial islands, conduct scientific research, and enforce

environmental protection measures.

• Rights of Other States:

o Freedom of navigation, overflight, and laying submarine cables.

o Subject to respecting the economic rights of the coastal state.

Key Takeaways
• UNCLOS provides a structured maritime legal framework, ensuring state
sovereignty while promoting freedom of navigation.

• Disputes still arise over maritime boundaries, as seen in cases like the South China
Sea.

• Climate change and technological advancements are shaping the future of maritime
law.