Public International Law: Concepts

Public International Law is the body of legal rules, norms, and principles that governs the relationships between sovereign states and other international actors, such as international organizations and, to a lesser extent, individuals. This field of law aims to regulate interactions on matters like peace, security, human rights, environmental protection, and trade. In this section, we will delve into key concepts under Public International Law.

1. Definition and Nature of Public International Law

Public International Law refers to the legal framework governing the conduct of states and international organizations in their relations with one another. Unlike national law, which is imposed on individuals by a sovereign, Public International Law primarily applies to sovereign states and other entities such as international organizations.

Key Characteristics:

Horizontal System: Public International Law operates in a horizontal legal structure. States are considered equals, and there is no central authority to enforce compliance.
Voluntary Compliance: States are sovereign, meaning they are generally free to accept or reject international obligations. Compliance with international law is often based on consent (through treaties, conventions, etc.).
Sources of Law: The sources of Public International Law are set out in Article 38 of the Statute of the International Court of Justice (ICJ) and include treaties, customary international law, general principles of law, judicial decisions, and writings of publicists.

2. Sources of Public International Law

The sources of Public International Law serve as the foundation for the rules and norms that govern international relations.

Treaties: Formal agreements between states that are binding under international law. Examples include bilateral or multilateral treaties, conventions, and protocols.
Customary International Law: Practices that have evolved over time and are considered legally binding, even if not written down. It arises from a consistent and general practice of states, accepted as law (opinio juris).
General Principles of Law: Fundamental principles that are recognized by a majority of national legal systems. These may fill gaps when neither treaties nor customary law provide guidance.
Judicial Decisions and Writings of Publicists: Decisions of international courts, such as the International Court of Justice (ICJ), and respected legal scholarship can be used as subsidiary means to determine rules of law.

3. Subjects of Public International Law

Subjects of Public International Law are entities capable of possessing international rights and duties. Traditionally, states are the primary subjects, but over time, other actors have gained limited or specialized international legal personality.

States: The primary and most important subjects. States must possess defined territory, permanent population, government, and the capacity to enter into relations with other states (Montevideo Convention, 1933).
International Organizations: Entities such as the United Nations (UN) or World Trade Organization (WTO) that have international legal personality. Their capacity to act and bind their members is typically derived from treaties.
Individuals: Under certain circumstances, individuals can also be subjects of international law, particularly in areas such as human rights and international criminal law. For instance, individuals may be held accountable for crimes against humanity, genocide, or war crimes (as seen in cases before the International Criminal Court).
Non-Governmental Organizations (NGOs): While not traditional subjects of international law, NGOs play a significant role in influencing international legal developments, especially in human rights, environmental law, and humanitarian aid.

4. Principles of Public International Law

Several fundamental principles guide the conduct of states and international actors in their relations under Public International Law:

Sovereignty: The principle of state sovereignty recognizes that states have supreme authority within their own territories. It implies non-interference in the internal affairs of other states, a cornerstone of international relations.
Equality of States: All states, regardless of size or power, are legally equal in their rights and duties under international law.
Non-Intervention: States are prohibited from interfering in the internal affairs of other states, including their political, economic, and cultural systems.
Prohibition of the Use of Force: Under the United Nations Charter, the use of force is generally prohibited unless sanctioned by the UN Security Council or in self-defense.
Self-Determination of Peoples: This principle allows peoples to freely determine their political status and pursue economic, social, and cultural development. It has been key in decolonization movements and is recognized in human rights law.
Pacta Sunt Servanda: This principle mandates that treaties and agreements must be honored in good faith. It underscores the binding nature of international treaties once they are accepted by the parties involved.
Responsibility to Protect (R2P): A more recent principle which holds that the international community has a responsibility to intervene, particularly in cases of genocide, war crimes, ethnic cleansing, and crimes against humanity, if a state is unwilling or unable to protect its population.

5. International Legal Personality

An entity with international legal personality is one capable of possessing rights and duties under international law and can engage in international legal relations. The concept determines who is capable of participating directly in international law processes.

States: The primary holders of international legal personality.
International Organizations: Limited legal personality, usually bound by the powers conferred by their member states via treaties.
Individuals: Limited international legal personality, mostly in areas such as human rights and international criminal law.

6. Jurisdiction in Public International Law

Jurisdiction refers to the legal authority a state or international tribunal has to make and enforce laws. In Public International Law, jurisdiction can take several forms:

Territorial Jurisdiction: A state has jurisdiction over all persons, property, and activities within its territory.
Extraterritorial Jurisdiction: States may assert jurisdiction over actions that occur outside their territory, such as crimes committed by their nationals abroad.
Universal Jurisdiction: Certain crimes, such as piracy, genocide, and crimes against humanity, are so severe that any state may prosecute the offenders, regardless of where the crime was committed or the nationality of the perpetrators.
Diplomatic Immunity: Under the Vienna Convention on Diplomatic Relations (1961), diplomats enjoy immunity from the jurisdiction of the host state, but this is balanced by the sending state's duty to respect the laws of the host state.

7. State Responsibility

State responsibility is a fundamental principle of international law, holding states accountable for breaches of their international obligations. If a state violates international law, it must provide reparation, which may take the form of restitution, compensation, or satisfaction.

Attribution: The conduct must be attributable to the state for it to incur responsibility, typically involving actions by state organs or agents acting on behalf of the state.
Breach of an Obligation: There must be a violation of an international obligation.
Consequences: The responsible state may face consequences, such as diplomatic measures, sanctions, or even legal actions before international courts or arbitration.

8. Recognition in International Law

Recognition in international law refers to the acceptance by other states of the legal status of a new state or government.

De Facto Recognition: Given when a government has control over a state’s territory but lacks long-term stability or full international recognition.
De Jure Recognition: Granted when a government is recognized as having full legal status and permanence.
Non-Recognition: Some situations may prompt non-recognition, such as when a state is created through illegal means, such as the use of force, as in cases of occupation or annexation.

9. International Dispute Resolution

Public International Law provides mechanisms to resolve disputes between states or between states and other actors. These mechanisms can be diplomatic or judicial.

Diplomatic Means: These include negotiation, mediation, conciliation, and arbitration. These approaches rely on mutual agreement between the parties involved.
Judicial Means: States may resolve disputes through international courts, such as the International Court of Justice (ICJ), which adjudicates legal disputes submitted by states and gives advisory opinions on legal questions.

In conclusion, Public International Law establishes the rules and norms for state interactions and is rooted in principles of state sovereignty, equality, and non-intervention, among others. Its sources include treaties, customary law, and general legal principles, while its subjects encompass states, international organizations, and, to a limited degree, individuals. The principles of Public International Law are essential in maintaining global order and ensuring the peaceful coexistence of states.