RR305 International Public Law Summary 1. Introduction to International Law Actors
The possession of international legal personality means an actor is a subject of the public international law
system. A subject of public international law has rights and duties under international law and has the capacity to
enforce those rights by bringing a claim under international law.
To see which actors have international legal personality it is useful to make a general distinction between state
actors and non-state actors.
States were traditionally considered to be the only ones to have international legal personality.
However, states are no longer the exclusive subjects of the public international law system (as some non-state
actors also possess international legal personality), but they are still considered today to be the primary subjects of
public international law. There is no generally accepted definition of 'states'. However, there are widely accepted criteria, based on the
Montevideo Convention on Rights and Duties of States (MCRDS).
Art. 1 MCRDS The state as a person of international law should possess the following qualifications:
a) A permanent population;
b) A defined territory;
c) A central government;
d) The capacity to enter into relations with the other states.
Since the onset of the 20th century, there has been a proliferation of non-state actors in public international law.
This phenomenon has ensured that it is no longer only state that have international legal personality.
However, whereas the international legal personality of states is original, that of non-state actors can be considered
derivative in nature.
These actors include international or governmental organizations, individuals, multinational corporations (MNCs),
and non-governmental organizations (NGOs).
NGO are independent private organizations which pursue non-profit making aims.
Example = Amnesty International, Greenpeace.
Unlike states, these subjects do not possess full legal personality under international law. Instead, they possess
certain rights and duties, which vary depending on the actor concerned. Examples of non-state actors that have been accorded (varying degrees) of international legal personality include:
The degree of international legal personality (thus, the specific duties and obligations) depends on the competences
('powers') of the international organization.
The international legal personality may explicitly be granted in the constituent document of the organization (the
'founding treaty'). More frequently however, the international legal personality can be implied or inferred from the
constituent powers of the organization.
The international legal personality of the United Nations has been affirmed by the International Court of Justice
Especially over the past six decades, contemporary international law has accorded limited international legal
personality to individuals. The development of international human rights law is a good example hereof.
Individuals now also have duties under international law, thus referring to the regime of international criminal law.
Within international law, there is no single body able to create laws which are internationally binding upon
everyone; in other words, there is no central, international legislature or parliament.
Nor is there a central system of courts with comprehensive and compulsory jurisdiction to interpret and apply
There is, however, a variety of sources of public international law. A distinction can be made between:
Secondary rules = The procedural legal rules. These rules govern how the primary rules come into existence, how
they can be interpreted and how they can be changed.
Example = The law of treaties.
Primary rules = The substantive rules containing rights and duties of international law.
Example = The law on the use of force. The most authoritative list of sources of public international law can be found in article 38(1) of theStatute
International Court of Justice(ICJ).
Article 38 of the Statute of the International Court of Justice lists various sources of public international law.
Article 38(1) ICJ Statute reads:
"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to
it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly recognized by the
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
d. 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.
Article 38(1) ICJ Statute sets out a non-exhaustive list of the sources of public international law, but it is
considered to be an authoritative list.
Article 38 ICJ Statute indicates a difference in primary and subsidiary sources.
Primary sources = Treaties, customary international law and general principles of international law.
Subsidiary sources = Case law and doctrine.
The primary sources usually prevail over the subsidiary sources. Note, however, that amongst the primary sources
-- or amongst subsidiary sources -- there is no clear-cut hierarchy. That means, the ordinary rules of priority are
applicable, for instance lex specialis derogat legi generali.
Examples of sources that are not mentioned in Article 38 ICJ Statute are decisions of international organizations and
unilateral declarations of states. Treaties
Treaties (or conventions) = Agreements which are concluded between subjects of international law.
Treaties are based on the principles of consent and pacta sunt servanda.
Pacta sunt servanda principle = A customary rule of international law that has been codified in Article 26 of the
Vienna Convention on the Law of Treaties (1969) (VCLT), which stipulates that every treaty in force is binding upon
the parties to it and must be performed by them in good faith.
The VCLT regulates the law on treaties between states and most provisions therein have obtain the status of
customary international law. States can only be bound by treaties by consent, based on their sovereignty.
Consent to be bound by a treaty may occur by signature, exchange of instruments constituting a treaty or
ratification, acceptance or approval. According to Article 18 of the Vienna Convention on the Law of Treaties, a state is under the obligation to refrain
from acts which would defeat the object and purpose of a treaty, before the treaty enters into force. Customary international law
Two requirements must be met in order for a rule of customary international law to emerge:
A sufficient number of states of the international community must have acted in a particular manner for a
certain amount of time.
This is the objective element.
State practice must be extensive and fairly consistent.
These criteria have been explained by the ICJ in inter alia the North Sea Continental Shelfcases and the
Nicaragua case; North Sea: The ICJ stated that state practice should be extensive and virtually uniform; including the
practice of those states specially affected. Nicaragua case: The Court said that state practice does not have to be absolutely uniform, as long as any
inconsistent practice by individual states is regarded as a breach of the rule in question or, if the state
concerned claims that its inconsistent conduct was justified by an applicable exception or justification.
Opinio juris sive necessitatis;
Meaning = The opinion as to law or necessity.
States must have carried out these acts with the conviction that these acts have been permitted or even
required under international law.
This is the subjective element.
According to the ICJ, opinio juris may be deduced from the attitude of states towards, for instance, UN
General Assembly Resolutions.
General obligations (Erga Omnes obligations)
General principles = Legal principles recognized in the domestic law of nations worldwide, which have been
transposed into international law.
It concerns legal principles such as 'estoppel' or 'pacta sunt servanda'.
The term 'erga omnes' does not describe who is under a particular obligation; rather, it describes to whom an
obligation is owed. Specifically, an erga omnes obligation is owed to the international community as a whole.
Examples of erga omnes obligations include: the prohibition of slavery, prohibition of racial discrimination and certain
Practice of international courts and tribunals
In principle, no hierarchy exists among the three primary sources of international law (treaties, custom and general
However, if we look at the practice of international courts and tribunals there is a general tendency of relying on
general principles of law whenever a sufficient answer to a legal question is not provided by international custom or
treaties. In other words, in case of conflicting rules, general principles of law are recognized as 'lex generalis',
whereas customary law and treaties are recognised as 'lex specialis' .
Jus cogens norms
Jus cogens norms (also known as peremptory norms) = Legal norms from which no derogation is permitted. Thus,
they are the highest substantive norms in public international law.
Jus cogens norms derive their status from their content. The status of jus cogens norms is therefore based on the
acceptance of fundamental and superior values within the system of public international law.
Examples of jus cogens norms -- which are generally accepted as such -- are the prohibition of genocide, the
prohibition of slavery and the prohibition of piracy.
Soft law (as opposed to legally binding 'hard law') = Quasi-legal instruments which, formally speaking, are not legal
binding, but which might nevertheless be of great legal relevance and political importance.
Soft law instruments may also influence the development of legally binding ('hard') international law, especially to
the extent that such instruments might be indicative of emerging international customary law, both of
demonstrating the existence state practice and of opinio iuris. Examples of prominent soft law instruments include the non-binding resolutions of international organizations,
such as the recommendations or resolutions adopted by the UN General Assembly.
A well-known example is the Universal Declaration of Human Rights(UDHR), adopted through a non-legally binding
resolution by the GA, which have proven to be highly influential on the development of international human rights
law and on the conduct of states.
Adjudication in International law
Adjudication = The use of a court or tribunal for solving a dispute.
There are various international courts and tribunals which adjudicate over matters of public international law. Prominent examples of international courts include:
The International Court of Justice (ICJ);
The Court of Justice of the European Union (ECJ of CJEU, HvJEU);
The European Court of Human Rights (ECtHR/EHRM);
The International Tribunal for the Law of the Sea (ITLOS);
The International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY);
The International Criminal Tribunal for Rwanda (ICTR).
Although no official hierarchy exists amongst international courts and tribunals, the ICJ is the most relevant
international tribunal, for two reasons.
Firstly, the ICJ has universal jurisdiction since states from all continents can settle their disputes at the ICJ.
Secondly, the ICJ has general jurisdiction because it can rule on all kinds of topics (or, are not limited so specific
topics within public international law).
Jurisdiction of the ICJ
The ICJ is the principle judicial organ of the United Nations and consists of 15 judges, who are each elected for a
period of 9 years.
The Court has jurisdiction in respect of two different procedures:
The Court may issue such opinions based on Article 96 UN Charter and Article 65 Statute of the
International Court of Justice.
The organs of the United Nations may request advisory opinions.
Advisory opinions are not binding, but do possess significant legal authority.
The Court may issue binding decisions (that is, binding upon the parties), based on Article 94(1) UN
Charter and Article 59 Statute of the International Court of Justice.
Only states may be parties to a contentious case at the ICJ.
The ICJ does not have mandatory jurisdiction. Rather, based on Article 36 ICJ Statute, states have to accept the
jurisdiction of the Court - and they can only do so in four different ways:
1. When state parties specifically choose to submit their case to the ICJ; this is called a special agreement or
2. When the treaty or convention at stake in the dispute provides a clause stating that disputes will be
settled before the ICJ.
A good example is the Genocide Convention (compulsory) which states that disputes relating to the
interpretation, application or fulfillment of the Convention shall be submitted to the ICJ;
3. When states make or have made a general declaration in which they declare to accept the jurisdiction of
the ICJ, with regard to all disputes in which it is involved, from a certain time on (see article 36(2) ICJ
Statute). This acceptance of jurisdiction, however, relies heavily on reciprocity.
For instance: If state A has accepted the Court's jurisdiction from 1 January 2000 and state B has done so
from 1 January 2008, only the disputes between A and B arising as of 1 January 2008 will be included in
the scope of the ICJ's jurisdiction.
4. When states have not accepted the jurisdiction of the Court, they are still free to appear in court for
proceedings when disputing with a party that wants to submit the case to the ICJ.
However, in doing so, they are accepting the ICJ's jurisdiction by default. This is mechanism of accepting
the ICJ's jurisdiction is called forum prorogatum.
International law is changing because the world is changing. The primary reason for this is globalization.
The changes are of a systemic or fundamental nature as they concern, for example the subjects and sources of
international law as well as the rules on state responsibility.
The ‘rules of the game’ are changing – while the game continues, but also while other aspects of the game remain
unchanged. E.g. law of treaties: There are two normative patterns:
What has changed (and continues to evolve)?
1. The nature of the problems This requires different approaches.
2. The actors involved Now there are state actors and non-state actors.
3. The sources of law Now soft law is also included.
4. The role of state consent.
1. Changes in the nature of problems.
So, within this ‘dual reality’, what type of issues, problems, conflicts, dilemmas are international law dealing with?
First of all, matters concerning state interests.
But now also, matters concerning common interest. International environmental law, international human rights law, international criminal law and international law
on peace and security all are examples of areas of international law that address issues that involve interests of the
international community as a whole, or that concern the common interest.
Common interest matters also involve actors other than states. Traditional international law, with its focus on the interests that states share, does not address common interests
and its institutional structure is often not well suited to address common interest problems, precisely because it
focusses on states. This is a point that Judge Weeramantry, then Vice-President of the ICJ, raised in his Separate
Opinion in the 1997 Gabčíkovo-Nagymaros Projectcase. He makes the point that the adversarial procedure that is
available at the ICJ is not well suited to deal with common interest problems. In addition, the Articles on State Responsibility also refer to obligations owed to the international community,
namely: those based on peremptory norms of general international law, also referred to as rules of jus cogens.
The Articles related to peremptory norms are one of the reasons why states cannot agree on the transformation of
the Articles into a treaty. Identifying the common interest in a world that in many ways is divided, involves serious political challenges,
which also find reflection in legal discourse. For example, we probably all agree that those suspected of committing
of serious crimes, such as those included in the Statute of the International Criminal Court, should be prosecuted.
Yet, why is it especially suspects from Africa that are being prosecuted? Moreover, how do we distinguish between
'freedom fighters' and 'terrorists'?