Introduction to International Law and Human Rights Law

By: Fadi Antoun

Definition and Subjects of Public International Law:

It is the set of rules governing the relations (setting rights and duties) between its subjects:

1. States

2. International Organizations

3. Self Autonomies

4. People

5. Individuals

6. Governments in Exile

7. Corporations having the capacity to conclude treaties

Introduction to Public International Law

Sources of Public International Law

Binding sources (Hard Law) - Article 38 of the ICJ Statute

a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

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

c) the general principles of law recognized by civilized nations;

Introduction to Public International Law

According to the International Court of Justice:

“There are no grounds for holding that when a customary international law contains rules identical to those in a treaty, the later supervenes the former. A customary international rule continues to exist and to apply separately from an international treaty even where the two categories of law have an identical content”

In case a treaty rule and a customary rule were contradicting, and it was impossible to apply both of them in parallel, the recent rule only applies.

Introduction to Public International Law

International conventions

An International Convention is one of the kinds of an Internationally Binding Law Making Treaty. According to the Vienna Convention on the Law of Treaties 1969, Article 2 (a):

“treaty means an International agreement concluded between states in written form and governed by International Law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;”

Other kinds of an International Binding Treaty include (not limited to): Covenants, Charters, Statutes, Resolutions, Pacts, Protocols, etc.

Introduction to Public International Law

What about Oral treaties?

Treaties could also be in oral form, however such treaties, theoretically, will not be governed by the 1969 Vienna Convention, but by Customary International Law. Practically, both are almost the same.

What about treaties between States and International Organizations or between International Organizations?

A treaty could also be between International Organizations or between a State and an International Organization, however such treaties, will not be governed by the 1969 Vienna Convention, but by the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986

Introduction to Public International Law

International Custom

Definition of International Custom

An International Custom is a Binding Oral Legal Rule.

Elements of International Custom

International Custom has two elements; Material Element (State Practice), and Mental Element (Opinio juris)

Introduction to Public International Law

The Material Element (State Practice) consists of the following sub-elements:

- Generality

- Uniformity and consistency (i.e. undeviating)

- Frequency and repetition (i.e. habitual)

According to the International Court of Justice, there is no time frame for a rule to be an International Custom.

The Mental Element (Opinio juris) refers to the will and the intent of the state to be bound by a certain rule, because such rule is of an interest to it.

However, an International Customary Rule could be non-binding on one state, if it has previously objected to it, or was silent about it, without being able to object to it, before it being binding on the International Community.

Introduction to Public International Law

General Principles of Law Recognized by Civilized Nations

It refers to rules of Law, widely agreed upon and accepted in the Domestic Law systems of states, namely:

- Latin or Civil Law System (as in France, Germany and Egypt);

- Anglo-Saxon or Common Law System (as in the U.K., U.S.A, and South Africa.);

- Religious Law (as in Saudi Arabia, Sudan, Indonesia, and Pakistan)

For instance: “no one can be a judge in his own case”, “the burden of proof lies with the claimant”, “illegal acts cannot breed a right in law”, etc.

Introduction to Public International Law

Evidence of Law - Article 38 of the ICJ Statute d. …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.

Other Binding Sources

According to the vast majority of Public International Law jurists “Unilateral Acts of States and International Organizations”

Introduction to Public International Law

Non-binding sources (Soft Law)

As states are only bound by their consent, non-binding sources or agreements lack the “Consent to be bound” cornerstone, and therefore are non-binding. Examples are (not limited to): Declarations and Recommendations of International Organizations and Conferences

Introduction to Public International Law

Purposes and Principles of the United Nations and Public International Law

According to Article 1 of the United Nations Charter, the Purposes of the United Nations are:

- Maintenance of International Peace and Security- Develop friendly relations among nations- Achieve international co-operation in solving international problems- Harmonizing the actions of nations

Introduction to Public International Law

According to Article 2 of the UN Charter, the Principles of the United Nations are:

- Sovereign equality of all states

- Good faith

- Peaceful settlement of international disputes

- Non threat or use of force

- Giving the United Nations every assistance in any action it takes in accordance with the UN Charter, and refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

- Non Intervention in the domestic affairs of states, with the exception of the United Nations Security Council enforcement measures under Chapter Vll.

Introduction to Public International Law

References and useful links

- Oppenheim, Oppenheim’s International Law, Volume 1 Peace, Ninth Edition

- Ian Brownlie, Principles of Public International Law, Sixth Edition

- Malcolm Evans, International Law, Fourth Edition

- Malcolm N. Shaw, International Law, Sixth Edition

Introduction to International Law and Human Rights Law

Thank You!