Public International Law regulates relations between States and also deals with international organizations, individuals and other actors. These quick revision notes on Public International Law cover the main CLAT PG topics: the nature and sources of international law, statehood, recognition, State responsibility, jurisdiction, nationality, extradition, asylum, diplomatic agents, peaceful settlement of disputes and the law of the sea.
1. Meaning, Nature and Scope of Public International Law
Public International Law is the body of rules that governs the conduct of States and other international persons. Traditionally, it focused on relations between sovereign States. Today, its scope is wider. It includes international organisations, human rights, international criminal responsibility, refugees, the environment, the use of force, trade and the global commons.
International law is different from domestic law because there is no single world legislature, police force or government above all States. Yet international law is treated as law because states accept legal obligations through treaties, custom and general legal principles. International courts, tribunals, national courts, diplomacy and international organisations help apply and enforce these rules.
Main subjects of international law
The principal subjects are:
- States, which have the fullest legal personality,
- International organisations, such as the United Nations,
- Individuals, who have rights under human-rights law and may incur responsibility for international crimes, and
- Other entities, such as peoples claiming self-determination, insurgent groups in limited contexts and certain corporations or non-State actors.
2. Sources of International Law
Article 38(1) of the
Statute of the International Court of Justice is the usual starting point for identifying sources. It refers to:
- International conventions or treaties,
- International custom, shown by general practice accepted as law,
- General principles of law recognised by civilised nations, and
- Judicial decisions and the writings of publicists as subsidiary means for determining rules of law.
Treaties
Important treaty principles include:
- pacta sunt servanda : every treaty in force is binding on its parties and must be performed in good faith,
- a State cannot normally rely on its internal law as a justification for failing to perform a treaty,
- consent is central to treaty obligations, and
- a treaty may be interpreted in good faith according to the ordinary meaning of its terms, their context and the treaty’s object and purpose.
Customary International Law
Custom develops through two elements:
- State practice: what States generally do, and
- Opinio juris: the belief that the practice is followed because law requires or permits it.
A practice does not become customary law merely because it is repeated. The legal belief behind the practice must also be shown.
In
North Sea Continental Shelf Cases, the ICJ explained that State practice must be extensive and representative, and that the relevant States must act from a sense of legal obligation. In
Nicaragua v. United States, the Court recognised that treaty rules and customary rules can exist separately even when they deal with a similar subject.
General principles of law
General principles fill gaps and support the working of legal systems. Examples include good faith, res judicata, estoppel, responsibility for wrongful acts and the duty to make full reparation.
Judicial decisions and writings
Judicial decisions are subsidiary means. The judgment of the ICJ is binding between the parties to that particular case under Article 59 of the ICJ Statute. It is not automatically binding as a universal precedent on every State. Judicial decisions and scholarly writings help identify and explain rules, but they do not replace treaties or custom.
3. Statehood and the State as an International Person
- a permanent population,
- a defined territory,
- a government, and
- the capacity to enter into relations with other States.
Sovereignty and Independence
Sovereignty means supreme authority within the territory and independence from the authority of another State. Sovereignty is not unlimited. A State must respect its treaty obligations, customary international law, human rights obligations and the sovereignty of other States.
The Lotus case is associated with the principle that restrictions on State independence cannot be presumed. At the same time, a State cannot exercise its authority in a way that violates the rights of another State or a binding international obligation.
Self-determination
The right of peoples to self-determination means that a people may determine its political status and pursue its economic, social and cultural development. It has been important in decolonisation and has also raised difficult questions about secession and territorial integrity.
State responsibility
A State incurs international responsibility when:
- conduct consisting of an act or omission is attributable to the State under international law, and
- that conduct breaches an international obligation of the State.
State responsibility is different from responsibility of an individual under international criminal law. A State may be responsible for the conduct of its organs, officials or persons acting under its instructions, direction or control.
The normal consequence is cessation of the wrongful conduct, assurances of non-repetition where appropriate and full reparation for the injury caused. Reparation may take the form of restitution, compensation or satisfaction.
Important cases
- Chorzów Factory Case: the injured State should receive full reparation that wipes out, as far as possible, the consequences of the illegal act.
- Corfu Channel Case: Albania was responsible for failing to warn about mines in its waters. The case also recognised the importance of evidence and due diligence.
- Tehran Hostages Case: Iran was responsible for violations of diplomatic obligations and for failing to protect the United States Embassy.
- Nicaragua v. United States: the ICJ applied rules on use of force, non-intervention and State responsibility.
4. Recognition of States and Governments
Recognition is the act by which an existing State accepts that an entity or government satisfies the conditions for international relations. Recognition can have political and legal consequences, but it does not always create the entity being recognised.
Recognition of States and Recognition of Governments
Recognition of a State concerns the existence of a new international person. Recognition of a government concerns the authority that represents an already existing State.
A government may be recognised when it effectively controls the territory and can fulfil international obligations. In modern practice, States may also consider legitimacy, constitutional continuity, democratic support and respect for international law.
Theories of recognition
- Constitutive theory: an entity becomes an international person through recognition by existing States.
- Declaratory theory: an entity becomes a State when it satisfies the objective conditions of statehood as recognition only confirms an existing fact.
The declaratory approach is generally preferred because it gives greater importance to objective facts rather than the political choice of individual States.
Recognition may be:
- express, through a formal declaration or diplomatic communication,
- implied, through conduct that clearly shows an intention to recognise,
- de facto, provisional or based on effective control, or
- de jure, complete and formal recognition.
A State may recognise a government without establishing full diplomatic relations. Recognition should not be confused with mere dealings or negotiations.
5. State Jurisdiction
Jurisdiction is the legal power of a State to make, apply and enforce rules. It is generally discussed under three heads:
- prescriptive jurisdiction: power to make laws;
- adjudicative jurisdiction: power of courts to decide cases; and
- enforcement jurisdiction: power to take physical or coercive action.
A State may not normally exercise enforcement jurisdiction inside another State’s territory without consent or a recognised legal basis.
Territorial principle
A State has jurisdiction over conduct occurring within its territory. This includes conduct on land, internal waters, territorial seas and, subject to special rules, airspace. The objective territorial principle applies where conduct begins outside the State but produces substantial effects inside it.
Nationality principle
A State may regulate the conduct of its nationals even when they are outside its territory. This is also called active personality jurisdiction.
Passive personality principle
A State may claim jurisdiction because its national was the victim of an offence committed abroad. This principle has been used more cautiously than territorial or nationality jurisdiction.
Protective principle
A State may act against conduct outside its territory that threatens its security or essential governmental functions, such as counterfeiting currency or espionage.
Universal jurisdiction
Universal jurisdiction is based on the nature of the offence rather than the place of commission or nationality of the offender or victim. It is associated with offences considered particularly serious, such as piracy, genocide, war crimes and crimes against humanity, subject to the applicable treaty and customary rules.
The Lotus case
In
S.S. Lotus, the Permanent Court of International Justice considered whether Turkey could prosecute a French officer after a collision on the high seas. The decision is important for territorial and nationality jurisdiction, although its reasoning and the later development of the law of the sea must be read together with modern treaty rules.
Jurisdiction on the High Seas
The high seas are not subject to the sovereignty of any State. All states enjoy freedom on high seas such as navigation, overflight and the laying of submarine cables, subject to international law.
The flag State normally has jurisdiction over a ship on the high seas. A ship is expected to have a genuine link with its flag State under international law. Therefore, other States cannot ordinarily board it without consent, except under recognised exceptions.
Exceptions include:
- piracy,
- the slave trade,
- unauthorised broadcasting,
- a ship without nationality, and
- reasonable suspicion of the same nationality as the warship in specified circumstances.
The right of hot pursuit allows a coastal State to continue pursuit of a foreign ship that has violated its laws in internal waters, territorial sea or certain maritime zones. The pursuit must begin while the ship is within the relevant zone and must be continuous. It ends when the ship enters the territorial sea of its own State or a third State.
6. Nationality and Statelessness
Nationality is the legal relationship between an individual and a State. It creates rights and duties under domestic law and gives the State a basis for diplomatic protection.
Acquisition of Nationality
Common methods include:
- jus soli: nationality based on birth in the territory,
- jus sanguinis: nationality based on descent or parentage,
- naturalisation after satisfying statutory conditions,
- registration, and
- special rules relating to incorporation of territory, marriage or adoption.
Loss of Nationality
Nationality may be lost through renunciation, voluntary acquisition of another nationality, deprivation under law or changes in territorial status. Deprivation must comply with due process and international obligations.
Statelessness
A stateless person is someone who is not considered a national by any State under the operation of its law. Statelessness can arise from conflicting nationality laws, discrimination, State succession, deprivation of nationality or gaps in birth registration.
The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are important treaty instruments. The principle against arbitrary deprivation of nationality is also linked with the right to identity and human dignity.
Important Case
In the
Nottebohm Case, the ICJ considered nationality and diplomatic protection. It distinguished formal nationality from the genuine connection relied on in the circumstances of that case. The case is often cited for the idea of an effective or genuine link, although its precise application must not be overstated.
Extradition is the formal process by which one State hands over a person to another State for prosecution or for serving a sentence. It is normally based on a treaty, domestic law or reciprocity.
Main Principles of Extradition
- double criminality: the conduct should generally be an offence in both States;
- speciality: the requesting State should prosecute the person only for the offence for which extradition was granted, subject to exceptions;
- rule against extradition of political offenders: many systems exclude political offences, though the exception is interpreted narrowly for serious violence and international crimes;
- non bis in idem: a person should not be tried twice for the same offence; and
- human-rights limitation: extradition may be refused where there is a real risk of torture, persecution, an unfair trial or inhuman treatment.
Extradition is different from deportation. Extradition is a formal transfer for criminal proceedings or sentence while deportation is an immigration measure by which a state removes a person from its territory.
Important Cases
- Soering v. United Kingdom : extradition may violate human-rights obligations where the person faces a real risk of inhuman or degrading treatment.
- United States v. Alvarez-Machain : considered the effect of an unlawful abduction on jurisdiction. The case is often discussed with the broader principle that extradition procedures and State sovereignty matter.
- Extradition of a person accused of terrorism : the requesting State must still meet treaty and domestic-law conditions and cannot treat extradition as automatic.
8. Asylum and Refugee Protection
Asylum is protection granted by a State to a person who fears persecution or serious harm in another State. While territorial asylum is granted within the territory of the protecting State, diplomatic asylum is claimed in an embassy or other diplomatic premises and is more controversial.
The main principle is non-refoulement which means a state should not return a person to a territory where there are substantial grounds for believing that the person faces persecution, torture or other serious harm. The exact scope may depend on refugee law, human-rights treaties and customary international law.
Asylum is generally a discretionary act of the receiving State, subject to international obligations. Therefore a person who receives asylum must also respect the laws of the asylum State.
Important cases
- Asylum Case (Colombia v. Peru): the ICJ examined diplomatic asylum and held that Colombia could not unilaterally determine the legal character of the offence for Peru.
- Haya de la Torre Case: addressed the consequences of diplomatic asylum and the obligation to resolve the situation under international law.
- Soering v. United Kingdom: connects extradition with the protection against cruel, inhuman or degrading treatment.
9. Diplomatic Agents and Immunities
The purpose of immunity is not to give a diplomat personal superiority rather to ensure that diplomatic functions can be performed independently.
Main Functions of a Diplomatic Mission
Under
Article 3 of the
Vienna Convention, a mission represents the sending State, protects its interests and nationals, negotiates with the receiving State, reports developments through lawful means and promotes friendly relations.
Important Privileges and Immunities
- Inviolability of the person: a diplomatic agent cannot ordinarily be arrested or detained by the receiving State.
- Inviolability of mission premises: officials of the receiving State cannot enter the embassy without consent of the head of mission.
- Immunity from criminal jurisdiction: a diplomatic agent generally enjoys immunity from criminal jurisdiction in the receiving State.
- Civil and administrative immunity: this has exceptions for private immovable property, succession matters and private commercial or professional activity.
- Inviolability of archives and diplomatic bags: official communications receive special protection.
- Waiver: immunity may be waived by the sending State. Waiver of jurisdiction does not automatically waive immunity from execution.
Duties and Limitations
Diplomats must respect the laws of the receiving State and must not interfere in its internal affairs. The receiving State may declare a diplomat persona non grata without giving reasons. The sending State may recall the diplomat or terminate the person’s functions.
Important cases
10. Peaceful settlement of international disputes
Article 2(3) of the UN Charter requires States to settle disputes peacefully. Article 33 lists methods such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement and the use of regional agencies or arrangements.
Negotiation
The parties communicate directly to reach an agreement. It is flexible and usually the first step. It does not always produce a binding result unless the parties agree to one.
A third party helps the parties communicate. A mediator may suggest solutions. Good offices generally focus on bringing the parties to the negotiating table.
Conciliation and enquiry
An enquiry body investigates facts. A conciliation commission examines facts and law and proposes a settlement. Its proposal is normally not binding unless the parties agree otherwise.
Arbitration
The parties choose an arbitral tribunal and define its jurisdiction and procedure. The award is generally binding according to the arbitration agreement.
International Court of Justice
The ICJ is the principal judicial organ of the United Nations. Only States may be parties in contentious cases. The Court’s jurisdiction depends on State consent through a special agreement, a treaty clause or an optional-clause declaration under Article 36(2) of the ICJ Statute.
An ICJ judgment is binding between the parties under Article 59 of the Statute. The Court may also give advisory opinions when authorised organs or agencies request them.
11. Law of the Sea
Internal waters
Internal waters lie landward of the baseline. Thus, the coastal State generally exercises sovereignty over them, subject to special rules relating to ports and innocent passage in appropriate situations.
Territorial sea
The territorial sea extends up to 12 nautical miles from the baseline. The coastal State has sovereignty over it, including the airspace above it and the seabed and subsoil, subject to the right of innocent passage for foreign ships.
Contiguous zone
The contiguous zone may extend up to 24 nautical miles from the baseline. The coastal State may prevent or punish infringements of its customs, fiscal, immigration and sanitary laws within its territory or territorial sea.
Exclusive Economic Zone
The EEZ may extend up to 200 nautical miles. The coastal State has sovereign rights for exploring, exploiting, conserving and managing natural resources. Other States retain freedoms such as navigation and overflight, subject to UNCLOS.
Continental shelf
The continental shelf concerns the seabed and subsoil beyond the territorial sea, up to the outer limits recognised by UNCLOS. Coastal States have rights over natural resources of the shelf even though those rights do not normally extend to the water column as such.
High seas
The high seas are open to all States and cannot be appropriated by any State. The flag State normally exercises jurisdiction over its vessels, subject to recognised exceptions such as piracy and the right of visit in limited circumstances.
International seabed area
The seabed beyond national jurisdiction is known as the Area. Its resources are treated as the common heritage of humankind and are administered through the institutional framework created by UNCLOS.
12. Relation between International Human Rights and International Criminal Law
Although human rights and international criminal law are separate branches, they are closely connected with Public International Law.
International human-rights treaties give individuals rights against states whereas international criminal law imposes personal responsibility for crimes such as genocide, crimes against humanity and war crimes. An individual may therefore have rights under an international treaty and may also be personally liable for an international crime.