The Nature, History and Philosophy of Public International Law

Topics: United Nations, Law, Human rights Pages: 14 (3408 words) Published: February 9, 2014
THE NATURE, HISTORY AND PHILOSOPHY OF PUBLIC INTERNATIONAL LAW

1. Introduction

International law is divided into:

a) Private International Law (or the conflict of laws) and

b) Public International Law.

The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising issues as to the application of foreign law or the role of foreign courts.

Public International Law is not simply an adjunct of a legal order, but a separate system altogether:

Serbian Loans Case, PCIJ, Series A, No.14, pp. 41-42.

Wallace (p.2) defines the term Public International Law as:

“ … those rules and norms that regulate the conduct of states and other entities which at any time are recognised as being endowed with international personality, for example international organisations and, to a certain extent, individuals, in their relations with each other.”

What this definition reveals is that although states remain the primary subject of Public International Law, they are no longer its exclusive subjects. Tomuschat (pp. 838 - 840), in his commentary on the International Military Tribunal at Nuremberg and the later Tokyo trial argues:

“Nuremberg did away with the protective umbrella that state sovereignty provided perpetrators. The Statute of the IMT did not allow political leaders to shield behind their official functions any longer. Article 7 explicitly provided that the ‘official position of defendants, whether as Heads of State or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment.’ This proposition has found its way onto all the later statutes of international criminal courts and tribunals …The remarkable fact was that the screen between international Law and the individual, normally constituted by state sovereignty, was pierced … Today, individual criminal responsibility is the unchallenged cornerstone of the entire edifice of international criminal law.”

Bloxham, D., 2009, The Final Solution – A Genocide, Oxford

Steiner, H.J., Alston, P. and Goodman, R., 2007, International Human Rights in Context – Law, Politics, Morals, Oxford, Chapter 2 pages 115-133

Tomuschat, C., “The Legacy of Nuremberg” (2006) Journal of International Criminal Justice, Vol. 4(4), 830-844.

As a result of this approach, the subject has changed to encompass fields as diverse as international trade, human rights, environmental protection and the exploration of outer space. Specific examples of this development can be seen in Articles 4 and 6 Convention on the Prevention and Punishment of the Crime of Genocide (1948), the adoption of the Universal Declaration of Human Rights (1948), as well as the creation of the International Criminal Court (1st July, 2002). The Universal Declaration of Human Rights contains a series of political and social rights, which are not legally binding, although individual jurisdictions today may be prepared to accord legal force to some of the latter’s provisions:

Filartiga v. Pena-Irala, 630 F. 2d 876 (2nd Cir., June 30 1980):

Per Circuit Judge Kaufman: For although there is no universal agreement as to the precise extent of the ‘human rights and fundamental freedoms’ guaranteed to all by the Charter [of the United Nations], there is at present no dissent from the view that the guarantees include, at a bare minimum, the right to be free from torture. This prohibition has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights … The General Assembly has declared that the Charter precepts embodied in this Universal Declaration ‘constitute basic principles of international law’ …

This approach needs to be contrasted with that expressed in the later ruling in:

Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 (9th Cir. 1992):

Per Circuit Judge Fletcher: … international agreements,...

Bibliography: Journals
Ascuncion, A.C., “Pulling the stops on genocide: the state or the individual” (2009) E.J.I.L., Vol
Clapham, A., “The role of the individual in international law” (2010) E.J.I.L., Vol. 21(1), pp. 25-30.
Happold, M., “Security Council Resolution 1373 and the Constitution of the United Nations” (2003) Leiden Journal of International Law, Vol. 16, pp. 593-610.
Oberg, M.D., “The Legal effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ” (November 2005) European Journal of International Law, Vol. 16(5), 879-906.
Schrijver, N., “Reforming the Security Council in pursuance of collective security” (2007) J.C. & S.L., Vol. 12(1), 127-137.
Tomuschat, C., “The Legacy of Nuremberg” (2006) Journal of International Criminal Justice, Vol
Textbooks
Bloxham, D., 2009, The Final Solution – A Genocide, Oxford
Cassese, A., 2003, International Criminal Law, Oxford, Chapters 1 and 2
Cassese, A., 2005, International Law, Oxford, Chapters 1-3, 16-17 and 19
Dixon, M., 20013, Textbook on International Law, Oxford, Chapter 1
Dixon, M., McCorquodale, R
Harris, D.J., 2010, Cases and Materials on International Law, Sweet and Maxwell, Chapter 1
Joyner, C.C
Kaczorowska, A., 2010, Public International Law, Routledge, Chapter 1.
Maryan Green, N.A., 1987, International Law, Pitman, Chapter 1
Merrills, J.G., 1998, International Dispute Settlement, Cambridge, Chapter 10
O’Brien, J., 2001, International Law, Cavendish, Chapters 1and 2.
Sands, P. and Klein, P., 2009, Bowett’s Law of International Institutions , Sweet and Maxwell, Chapter 2
Shaw, M.N., 2003, International Law, Cambridge, Chapter 1 and 2
Steiner, H.J., Alston, P. and Goodman, P., 2007, International Human Rights in Context – Law, Politics, Morals, Oxford, Chapters 2, 3, 4 and 10
Wallace, R.M.M., 2013, International Law, Sweet and Maxwell, Chapter 1
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