22407014 2008 L E I Notes in Public Int

Topics: International law, Law, International relations Pages: 343 (60615 words) Published: December 3, 2014
NOTES:

2008 LEI Notes in

Public International Law
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“Nam omnia praeclara tam difficilia quam rara sunt”
For all that is excellent and eminent is as difficult as it is rare

2

PUBLIC INTERNATIONAL LAW 2008

-Spinoza on Ethics

Notes:
INTRODUCTION
Definition
Public v Private International Law
Basis of Public International Law
1. Naturalist
2. Positivists
3. Eccletics
Three Grand Divisions
Relations between International and Municipal
Law
1. From the viewpoint of doctrine
a. Dualist
b. Monists
2. From the view of practice
a. Doctrine of Transformation
b. Doctrine of Incorporation
¯°º°¯
DEFINITION OF Public International Law
It is the body of rules and principles that are
recognized as legally binding and which govern
the relations of states and other entities invested
with international legal personality. Formerly
known as “law of nations” coined by Jeremy
Bentham in 1789.
Public International Law Distinguished From
Private International Law/Conflict of Laws
It is that part of the law of each State which
determines whether, in dealing with a factual
situation, an event or transaction between private
individuals or entities involving a foreign element,
the law of some other State will be recognized.

1. Nature

2.
Settlemen
t
of
Dispute

Public

Private

Public
is
international
in nature. It is
a law of a
sovereign over
those
subjected to
his
sway
[Openheim

Lauterpacht,
38.]

As a rule, Private
is national
or
municipal
in
character.
Except
when
embodied in a
treaty
or
convention,
becomes
international
in
character. It is a
law, not above,
but
between,
sovereign states
and is, therefore,
a weaker law.
[Openheim

Lauterpacht, 38.]
Recourse is with
municipal
tribunals through
local
administrative
and
judicial

Disputes
are
resolved
through
international
modes
of
settlement


3. Source

4. Subject

5.
Responsib
ility
for
violation

like
negotiations
and
arbitration,
reprisals and
even war
Derived from
such sources
as
international
customs,
international
conventions
and
the
general
principles
of
law.
Applies
to
relations
states inter se
and
other
international
persons.

processes.

Infractions are
usually
collective
in
the sense that
it
attaches
directly to the
state and not
to
its
nationals.

Generally, entails
only
individual
responsibility.

Consists
mainly
from
the
lawmaking
authority of each
state.

Regulates
the
relations
of
individuals
whether of the
same nationality
or not.

BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why
are rules of international law binding?]
1. Naturalist –
★ PIL is a branch of the great law of nature
– the sum of those principles which ought
to control human conduct, being founded
on the very nature of man as a rational and
social being. [Hugo Grotius]

PIL is binding upon States
2. Positivist –



Basis is to be found in the
consent and conduct of States.

Tacit consent in the case of
customary international law.

Express in conventional law.



Presumed in the general law of
nations. [Cornelius van Bynkershoek]
3. Groatians or Eclectics –
★ Accepts the doctrine of natural law, but
maintained that States were accountable
only to their own conscience for the
observance of the duties imposed by
natural law, unless they had agreed to be

3

PUBLIC INTERNATIONAL LAW 2008

bound to treat those duties as part of
positive law. [Emerich von Vattel]
★ Middle ground
3 GRAND DIVISIONS
1. Laws of Peace – normal relations between
states in the absence of war.
2. Laws of War – relations between hostile or
belligerent states during wartime.

as part of the law of the land…” However, no
primacy is implied.
Q: What are these generally accepted
principles?
A: Pacta sunt...
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