The Function of Public International Law


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This vertical structure is seen unfolding into two, mutually exclusive, frameworks: a framework of obligation, accounting for obligations, and a framework of authorization, accounting for rights. The problem then arising is that a concept of public international law which only admits either rights or obligations cannot be regarded as coherent. The author, however, takes and substantiates the position that coherence can be achieved by suppressing the mutual exclusivity of both frameworks.

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This move paves the way to formulating the function of public international law in terms of the constituting of international society. Since in public international law the theoretical aspects profoundly affect practice, this book is not only of interest to academics, but also for practitioners, such as officials of foreign offices and international institutions.


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What is public international law?

International Customs. Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law. This definition comprises of two elements: a general practice and its acceptance as law. The first element, the behavioral or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviors or correspondence. The second element the psychological or subjective element entails the conviction that in similar case such a practice is required or permitted by international law.

In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i. Strictly speaking, there is a clear technical distinction between the two. Usage is an international habit of action that has not received full attestation and does not reflect a legal obligation; an example of a usage is the salute at sea.

Usages may be conflicting; custom must be unified and consistent. A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of States and repetition over a lengthy period of time. A custom has a definite obligation attached to it.

Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment sanction or of retaliation against that State. International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall apply.


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  • In fact, international customs constituted the bulk of the rules of International Law. Historically, custom had played a great role in the formation of the rules of International Law.

    However, since the beginning of the Twentieth Century, this role has been decreased in favor of the law-making treaties. A treaty may be defined as an international agreement concluded between States in written form and governed by International Law. Article 38 of the Statute of ICJ indicates that international conventions treaties , whether general or particular, establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted to it.

    Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-making treaties, which intended to have a universal and general application, constitute a primary source of International Law.

    The particular treaties or the so called treaty-contracts are not directly a source of International Law since their application is limited only to the contracting parties which are two or small number of States, and they deal with limited affairs. This kind of treaties does not create new rules of Public International Law, but at best, only new rules of particular or regional application. However, as a substantial number of States accept and recognize such new rules formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law.

    Introduction to Public International Law

    Examples of such treaties are bilateral treaties on commercial, and friendship relations. The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth Century, there has been an astonishing development of law-making treaties. The rapid expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been transforming the whole structure of international life. Law-making treaties have been concluded to regulate almost every aspect concerning the international community.

    In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy method. They are of growing importance in International Law.


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    Their role in the formation of new rules of International Law increases day after day. Today, the law-making treaties are considered the most important primary source of Public International Law.

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    General Principles of Law. This source is listed the third after international conventions and international customs. The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied.

    Definition and scope

    Some say it means general principles of international law; others say it means general principles of national law. Actually, there is no reason why it should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the gaps in treaty law and customary law. Indeed, international tribunals had applied general principles of law in both senses for many years before the Permanent Court of International Justice was established in Nevertheless, there are various opinions as to the origin of the general principles of law. Some regard them as being originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing the validity of the positive rules.

    Others regard them as stemmed from the national legal systems Positive Law and have been transplanted to the international level by recognition. Actually, there is an agreement that the general principles of law do constitute a separate source of International Law. Examples of general principles of law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right and res judicata.

    Judicial Decisions. Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law. So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the decisions of the international courts PCIJ and ICJ are quoted as authoritative decisions, and international courts have always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.

    The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.

    Philip Allott - The True Nature of International Law

    The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law. There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims Tribunal. Although these tribunals differ from the international courts in some ways, many of their decisions have been extremely significant in the development of International Law.

    The decisions of national courts of various nations have played a role the development of International Law, particularly the international customary law.

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    The Function of Public International Law The Function of Public International Law
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