Introduction to Public international law

Types and definition of international law

To start simply, however, the Public international law may be distinguished from private international law
(otherwise known as “conflict of laws”), which concerns the situation in a nation’s domestic courts when
another nation is involved. Thus, a concern of private international law would be whether the law of a
given nation is more appropriate for a private lawsuit arising out of a relation containing foreign elements.
Public international law involves a super-legal system that operates between States and exists separate
from domestic laws.

The term ‘international law’ was first used by Jeremy Bentham in 1780 in his Introduction to the
Principles of Morals and Legislation. Since about 1840, in the English and Romance languages it has
replaced the older terminology ‘law of nations’ or ‘droit de gens’ which can be traced back to the Roman
concept of ius gentium and the writings of Cicero. In the German, Dutch, Scandinavian and Slavic
languages the older terminology is still in use (‘Völkerrecht’, ‘Volkenrecht’, etc.).
 Classical definition of PIL
Until the period between the two World Wars, writers found no difficulty in defining (public)international
law, in one formulation or another, as the law that governs the relations between states amongst each
other. To put simply, international law can be defined as the law that governs inter-State relations. (This
is to focus on States, the primary international actors, rather than secondary international actors like
international organizations and individuals.) As Brierly puts it in his celebrated book, international law is
“the body of rules and principles of action which are binding upon civilized states in their relations with
one another.” (J.L. Brierly, The Law of Nations, 1963.) The prevailing positivist doctrine of the
nineteenth century and first half of the twentieth century held that only states could be subjects of
international law, in the sense of enjoying international legal personality and being capable of possessing
international rights and duties, including the right to bring international claims.5 However, this did not
quite reflect reality even at that time. The Holy See, although not a state, was recognized to have
international legal personality, and so, for certain purposes, were insurgents and some forerunners of
modern international organizations.
 Modern definition of PIL
Since the inter-war period, the matter has become more complicated due to both the expansion of the
scope of international law into new areas and the emergence of actors other than states on the
international plane, such as intergovernmental organizations established by states, non-governmental
organizations created by private individuals, transnational companies, individuals and groups, including
minorities and indigenous peoples. Some of these new actors have also acquired international legal
personality or, at least, certain rights under international law, even if only granted by treaties concluded
between states.It can, there fore, be defined as a set of rules and principles that govern the conduct of
states and of international organizations and with their relations Inter se, as well as with some of their
relations with persons, whether natural or juridical.
It can also be defined as the law that applies to international actions, whether committed by States,
international organizations, or even individuals. There are several sub-categories under public
international law that includes international human right law, international humanitarian law, international
criminal law, international environmental law, international trade law, international water/river law..etc
In spite of the emergence of new players on the international level have put into question the role of the
state in international affairs, international law is still predominantly made and implemented by states.
International organizations are to a large extent dependent upon these territorial entities and the
willingness of their governments to support them. Only states can be members of the United Nations,
only states are entitled to call upon the UN Security Council if there is a threat to international peace and

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security, only states may appear in contentious proceedings before the International Court of Justice, and
only states can present a claim on behalf of a national who has been injured by another state, if there is no
treaty to the contrary. The individual has no individual rights in this respect under customary international
law and is dependent on the political discretion of the home state as to whether or not to present the claim.
In other words, the international legal system is still primarily geared towards the international
community of states, represented by governments.

Characteristics of PIL
Characteristics of international law
International law has a number of special characteristics making it completely different from highly
developed national legal systems that are connected with the existence of the modern state and its
apparatus.
1). The basic unit in the international system is the state which acts similar to the way an individual acts
under national law. Even though Domestic law is designed to address a large number of governmental
bodies and private individuals and groups of individuals, it is Individual people that are the primary
subjects and have rights and duties under the law. Individuals have formal equality before the law. Thus,
the law applies the same to the weak and the powerful, the poor and the rich. International law, on the
other hand, is primarily concerned with the legal regulation of the international intercourse of states
which are organized as territorial entities, are limited in number and consider themselves, in spite of the
obvious factual differences in reality, in formal terms as ‘sovereign’ and ‘equal’. States have rights and
duties under the law. The basic unit of the international legal system is the State. States also have formal
equality before the law in the international system. One may think of the State as a legal “person” that
has a status in international law similar to the status of a real person in national law. The State has a will
or “personality” by which it expresses itself; it is equal with other States before the law; and it is seen as
an indivisible whole
2) National legal system is described as vertical/centralized legal system while international legal system
is described as a horizontal/decentralized legal system . The central nature of national legal system is
reflected in the distinction between the three functions, typically entrusted to central organs, of
lawmaking (legislature), law determination (courts and tribunals), and law enforcement (administration,
police, army). The modern state domestically centralized the use of force by making it a state monopoly,
developing a standing army and a more or less efficient bureaucracy. International law is
horizontal/decentralized legal system because it lacks a supreme authority, the centralization of the use of
force, and a differentiation of the three basic functions of law-making, law determination, and law
enforcement typically entrusted to central organs. The United Nations General Assembly is not a world
legislature, the International Court of Justice in The Hague can operate only on the basis of the consent of
states to its jurisdiction, and the law-enforcement capacity of the United Nations Security Council is both
legally and politically limited.
3) International laws depend predominately on the States that create and enforce these laws.In other
words, [International law] is created directly by the very entities to which it is chiefly addressed, namely,
states, which also enforce it.” As one international law scholar puts it, “International law is made chiefly
in one of two ways: through agreements between states – ‘treaties’ – or through practice by states that
fulfills certain requirements – ‘customary international law’… This show that there is no international
government that has authority to pass such laws. Rather, international laws are the byproduct of actions –
the actions of States and other international actors like the United Nations. Moreover, it is states that have
the ultimate authority to interpret and enforce international law. If the majority of powerful States in the
world decided to cancel all their international commitments, then international law would cease to exist

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and the rules in this text would be meaningless. This is not to say that international laws are weak; States
are bound together rather tightly by good will and mutual interest. The point here is that international
laws depend almost entirely on the States that create and enforce these laws.

To get a better idea of how States operate under international law, consider the roles of States in the
international arena from the following chart.

National Legal System International Legal System

The government makes the laws (typically the There is no international government or legislature
legislature). that makes laws applicable to all States. Rather,
States have to consent to the laws individually,
either by entering into treaties with other States or
by creating customs through their behavior.

The judiciary decides on the rights and duties of Although there are many international tribunals, for
individual people. example the International Court of Justice, none of
them has compulsory jurisdiction to decide on the
rights and duties of States. Rather, States must first
consent to the jurisdiction of an international court
before the court can make a decision about those
States’ rights and duties.

The government enforces the law (typically the Again, there is no international government with
executive branch). the authority to command States. The ultimate
authority to enforce once right under international
law rests on the hand of individual state

3) International law places a great deal of emphasis on a State’s continued legal existence and relative
permanence of its borders. The stability of the international System rests on the stability of States, and for
this reason, international law does not allow states to end easily. In other word, rules of international law
are designed in the ways that assure States’s continued legal existence and relative permanence of its
borders. There is a general policy of the international community in favor of stable interstate relations.
The government of a State may change, through normal constitutional processes or otherwise, and the
State itself will continue to exist. As will be seen, even a total change in the structure of government – for
example, by rewriting the constitution – will not change a State’s legal obligations to other States at the
international level.
4), the role of self-help by states in cases of a violation of their rights is predominant in international law,
as compared with the restricted admissibility of self-help of individuals in national legal systems. This is
the consequence of the absence of real enforcement mechanisms at the international level That means,
individual States, acting alone or through the United Nations or some regional organization like NATO,

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must enforce their own rights. A state that violates an international obligation is responsible for the
wrongful act towards the injured state, or, under certain circumstances, to the international community as
a whole. The injured state can raise an international claim which it may pursue on the basis of special
remedies, if available, or by resorting to third-party mediation or conciliation, arbitration or judicial
proceedings. If one state commits an illegal act against another state, and refuses to make reparation or to
appear before an international tribunal, there is (or was until recently) only one sanction available to the
injured state: self-help. Due to this International law has, therefore, often been described as a ‘primitive
legal system’. Self-help exists as a sanction in all legal systems. In earlier primitive legal systems, most
sanctions involved the use of self-help in one form or another. Even in modern legal systems an
individual may defend himself against assault, retake property which has been stolen from him, evict
trespassers from his land and terminate a contract if the other party has broken a major term of that
contract. But in modern societies self-help has become the exception rather than the rule, whereas in
international law it has remained the rule.
 There are three forms of self-help.
War:-At one time states might even go to war to enforce their legal rights. However, this is no longer
lawful, with certain exceptions such as self-defense against armed attack. The remaining forms of self-
help are countermeasures, such as retorsion and reprisals.
Retorsion is a lawful unforceful act which is designed to injure the wrongdoing state —for example,
cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid, apart
from under special treaty provisions).
Reprisals are illegal, unforceful acts act but which are rendered legal by a prior illegal act committed by
the other state. For instance, if state A expropriates property belonging to state B’s citizens without
compensation, state B can retaliate by doing the same to the property of state A’s citizens. Reprisals must
be proportionate to the original wrong; for instance, state B could not expropriate property worth several
times the value of the property which its citizens had lost; still less would it be entitled to kill or imprison
state A’s citizens.
One disadvantage of retorsion and reprisals is that the state imposing these measures may injure itself as
much as the state against which they are directed; this is particularly so when one state cuts off trade with
another state. A recent example has been the reluctance of the United States to use trade sanctions to
enforce its criticism of human rights practices in China, in view of the huge Chinese market opportunities
for American companies.
The other disadvantage is there is considered to be collective responsibility of the whole community of a
state which has committed an internationally wrongful act. Thus, the civilian population of Iraq, in spite
of some precautions taken, was in effect made to suffer under the sanctions adopted by the international
community in response to the invasion and occupation of Kuwait by the Iraqi Government in the Second
Gulf War.
5). There is uneven/inconsistent enforcement of international laws. International laws are not enforced
consistently .one of the negative effect of self-help is that it works effectively only if the injured state is in
some way more powerful or more determined than the wrongdoing state. There is no central body in
international relations with the ability to enforce international obligations – especially not against
powerful States Not surprisingly, therefore, there has been a recent tendency for sanctions to be imposed
by large groups of states, working through international organizations such as the United Nations. But the
United Nations Security Council can impose sanctions only in limited circumstances, and in the past was
often paralysed by the power of veto possessed by each of its five permanent members. The United
Nations General Assembly is not subject to the veto, but its resolutions are usually not legally binding
(although they are an institutionalized form of public opinion and can be instruments of political
pressure). Both the Security Council and the General Assembly, being political rather than judicial
bodies, base their decisions on political considerations and sometimes pay little attention to the legal
rights and wrongs of a dispute. International organizations with more specialized functions may exercise a
more effective control over their members, especially if, like the International Monetary Fund, they
provide essential services. A state which was excluded from membership of the Fund would be unable to

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borrow gold and foreign currency from the Fund to meet a balance of payments crisis. And regional
organizations may exercise an even stricter discipline over their members; for instance, the Court of
Justice of the European Union has compulsory jurisdiction over member states which are accused of
breaking the rules of Community law. However, it must be admitted that sanctions work less effectively
in international law than in national law. States are few in number and unequal in strength, and there are
always one or two states which are so strong that other states are usually too weak or too timid or too
disunited to impose sanctions against them. , it is clear that there is no uniform enforcement at the
international level than enforcement at the national level.
6) Public international law has a strong political aspect/dimension that is lacking in other legal subjects.
The student should be aware, however, that, more so than in other legal subjects, there is a strong political
dimension to international legal relations. That means that international law is not about memorizing a
set of laws that will be applied uniformly to each and every State and situation. The “laws” are more
flexible, more subject to power relations, and therefore more elusive and harder to grasp. The black-letter
law still has important meaning for States, but it is not as clear what this meaning is.

If students are asked to create international laws on their own, for example by drafting a treaty, they
usually place too much emphasis on objective fairness and legal consistency. They forget that the overall
quality of their laws as judged by the legal profession will not matter if most States do not agree to these
laws. International laws must incorporate previously established claims that are defended by strongly
interested States, whether fair or not (one thinks immediately of Egypt’s claims to Nile waters); and,
sadly, the ideal, objective law must give way, in some cases, to the present interests of more powerful
States. These are the necessary sacrifices for consensus among States.
It is unwise to think of international law as a list of rules that can be identified and written out and
discussed. The rules are built on shifting ground; they change form as the ground underneath them
moves, as nations push up against one another and attempt to negotiate for a better position. There are
rules in the international system of course, but they are rules of a different type. If enforcement is left at
the discretion of powerful States, it will be a matter of politics.
8)International law as .law.
There is an old dispute going back to the early writings of Hobbes and Pufendorf, reinforced in the
nineteenth century by Austin’s influential legal theory, on the issue whether international law may be
properly called ‘law’. It is positivists who raise the point that international law should not be called “law.”
The argument is that law, by definition, requires some centralized enforcing power. According to
positivists, “law” properly defined includes only the law posited by a sovereign and obeyed by subjects.
The international system is not a system of law at all because there is no international body to enforce
obligations, hence no fear of punishment on the part of States, hence no obedience by States. At the
national level, the government (particularly the executive) enforces the laws. In international relations
there is no centralized enforcing power. Rather, there is a loose amalgamation of individual sovereign
States who may or may not follow their own rules. There is no central body in international relations with
the ability to enforce international obligations – especially not against powerful States. Unlike the
national legal system, the international legal system is incredibly decentralized and loosely bound
together, leading such scholars to the conclusion that the international system is not a “legal” system at all
but rather a changing network of moral bonds between largely autonomous State actors. International

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laws that cannot be enforced are not “laws” at all but rather more like suggestions. The controversy has
focused on the relevance of the lack of sanctions in cases of violation of international norms as compared
to municipal law and it has often confused the question of whether international law is ‘law’ with the
problem of the effectiveness and enforcement of international law. In foreign policy thinking, the
reductionist perception of international law is still prevalent in the ‘realist’ school which emphasizes the
role of power and of national interest in international relations and is connected with names such as
Morgenthau, Kennan and is also reflected in the latest book by Henry. Certainly, the actual role and
capability of international law in governing the relations between states must not be exaggerated, in view
of the decisive significance of military, economic, political and ideological factors of power.
 Counter argument against the idea that international law is not law
a) Empirical facts or ordinary course of business between states shows that most states are careful to
observe most obligations of international law most of the time, even in the absence of a
compulsory dispute settlement procedure and centralized enforcement agency.
In fact, the role of international law in international relations has always been limited, but it is rarely
insignificant. Its function in structuring the international system has been enhanced because of increasing
global interdependence and the self-interest of states in regulating their intercourse rationally on the basis
of reciprocity. Therefore, disputes between states are usually accompanied by—in a given case naturally
often conflicting—references to international law. Foreign ministries do not unnecessarily employ a
regular staff of legal advisors on international law. States continuously conclude and implement bilateral
and international treaties and establish and operate international organizations. More and more
compilations of state practice in international law have been appearing. Serious efforts are being made to
codify international law. Modern national constitutions usually contain references to international law.
All of this corresponds to the empirical fact that most states are careful to observe most obligations of
international law most of the time, even in the absence of a compulsory dispute settlement procedure and
centralized enforcement agency. Spectacular cases of violation of international law, which attract the
attention of the media more than regular conduct, are exceptional and should not be confused with the
ordinary course of business between states.
b) A system of law designed primarily for the external relations of states is not required to follow or
work like the historical models of centralized systems of national law.

There are scholars who argue that describing international law as primitive legal system or as not a legal
system is a misleading characterization. It is true that the impact of power and politics is much more
immediately recognizable and directly relevant in international law than in national law. It is also true that
international law, due to the lack of central institutions, is heavily dependent on national legal systems
(often called ‘municipal law’) for its implementation. There are also other features which explain the
comparison of the international legal system to the unsophisticated institutions, principles and rules of
pre-modern societies. However, on the whole, this characterization fails to distinguish the different nature
of international law (as a horizontal, decentralized legal system governing primarily the relations between
states) and of developed (centralized and institutionalized) national legal systems. It also does not
adequately reflect the relatively high degree of differentiation of the nature of the two legal systems.
The old discussion on whether international law is true ‘law’ is therefore a moot point. First, it should be
noted that the general concept of ‘law’ itself and its relative status in society is subject to quite divergent
views throughout the world, as has been shown by the modern discipline of comparative legal studies.54
It is based on different ideas, methods and traditions, as a consequence of historical and cultural diversity,
including the Anglo-Saxon common law tradition in England, the Commonwealth states and the United
States, the European continental civil law tradition based on notions of Roman law, the Marxist

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conception of law as a product of class struggle and historical formations of society, the Islamic concept
of law with no separation between state, society and religion, and special traditions in Asia and in Africa.
This diversity is also relevant for proper understanding of the different national perceptions on the role
and interpretation of international law itself.
As regards international law as ‘law’, the arguments of the critics centred upon the absence of a
legislature and, more recently, upon the topic of sanctions and compliance without recognizing the
historical, structural and functional differences between legal systems within states and the international
legal system as the necessary starting point of analysis. A horizontal system of law operates in a different
manner from a centralized one and is based on principles of reciprocity and consensus rather than on
command, obedience and enforcement. A system of law designed primarily for the external relations of
states does not work like any internal legal system of a state. But this does not mean that international law
as a whole works less effectively than national law— only that it works in a different way. After all, there
is no reason to assume that the international legal system must, or should, follow the historical models of
centralized systems of national law. In effect, what distinguishes the rules and principles of international
law from ‘meremorality’ is that they are accepted in practice as legally binding by states in their
intercourse because they are useful to reduce complexity and uncertainty in international relations. While
international law is clearly weaker than municipal law from the viewpoint of independent enforcement, it
still provides the external relevant terms of legal reference for the conduct of states in their international
relations, based on the fact that, in spite of all differences, they are members of an existing international
community.

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