Public International Law:
Introduction to PIL and Actors in the International Legal System
Definition: Public International Law (PIL):
• rules and principles regulating the relations between States and other entities, provided they
have international legal personality
• between States
• between States and other entities possessing international legal personality
History:
• 1648: Peace of Westphalia
o Series of peace treaties marking the end of the religious Thirty Years War
-> birth of the modern State: territorial units as equal sovereigns
• 17th century: Hugo Grotius
o ‘father of international law‘
o Author of international law’s most important texts:
§ the law of armed conflict and aggression
§ bonding force of treaties
§ freedom of seas
o use of treaties
• emergence of international organizations
o E.g. Universal Postal Union (1874), International Committee of Red Cross (1863),
Permanent Court of Arbitration (1899)
• main focus on Europe
• Outbreak of World War I
• After WWI:
o establishment of the League of Nations, based in Geneva
§ to secure international peace
o Permanent Court of International Justice in The Hague
-> however: WWII
• after WWII:
o the United Nations establishing with its main objective being protecting and restoring
international peace and security
,United Nations:
• six mains organs (UN Charter Article 7)
o General Assembly
o Security Council
o Economic and Social Council
o Trusteeship Council
o International Court of Justice
o Secretariat
• major issues:
o decolonization:
§ UN Special Committee on Decolonization
§ allowing process of self-determination of peoples
-> largely completed, still few territories waiting for decolonization
o Cold War
§ world divided into two blocks
§ no armed violence, yet a failure of collective security
§ UNSC paralyzed -> unable to adopt a resolution and to act effectively
• International Law today:
o growing interdependence of States, international organizations and multinationals
o emerging fields of international law
o growing number of international organizations:
§ CoE, EU, AU, OAS, NATO
§ but also judicial bodies, e.g. ICC, ECtHR, ITLOS, ICTY, STL
Subjects of International Law:
• Subjects of international law:
o entities which possess international legal personality
• determination of international legal personality:
o entities need to be capable of possessing international rights and obligations and
need to have the capacity to take certain type of actions on the international level
o
International Rights and Obligations:
• States have the duty under international law not to torture individuals
o Convention against Torture (CAT)
• Individuals have the right under international law not to be subjected to torture
o International Covenant on Civil and Political Rights (ICCPR)
,Taking Action on the International Level:
• the capacity to enforce one’s own rights
• to compel other subjects to comply with their duties
o E.g. bring claims before (inter)national courts/tribunal, ability to enter into binding
agreements (e.g. treaties), immunity from the jurisdiction of foreign courts
Actors within International Law: (Subjects):
• States
• International Organization (IO)
• (Indigenous) people
• Individuals
• NGO
• Corporations
States:
• original and major subjects of PIL
• possess full international legal personality
• deriving from the very nature and structure of the international legal system
• UN Charter Article 2 (1): all States by virtue of the principle of sovereign equality enjoy the
same degree of international legal personality
Statehood:
• 1933 Montevideo Convention on the Rights and Duties of States
o Article 1: The state as a person of International law should possess the following
qualifications:
§ a) a permanent population;
§ a group of individuals
§ no minimum number required
§ the population may largely consist of nomads
§ may be ethnically (relatively) homogenous
§ or very divers
§ b) a defined territory;
§ A territorial base upon which to operate
§ no need to have settled boundaries
§ North Sea Shelf Continental case para. 46: „There is (…) no
rule that the land frontiers of a State must be fully delimited
and defined, and often in various places and for long periods
they are not (…)“
§ no fixed lower limit for territory size
§ territory includes:
§ land
§ ground under territory
§ air space above
§ some portions of territorial waters
§ c) government; and
, § a government capable of exercising effective authority over the
population and territory
§ no required form of government
§ requirement of effectiveness not necessarily strictly applied
§ e.g Bosnia-Herzegovina joining the UN while large parts of the
territory were not under effective control of the government
§ during decolonization several entities achieved statehood
and were admitted to the UN while authorities lacked
effective control
§ internal unrest or civil war causing lasting anarchy does not
lead to denial of previously established statehood
§ a ‚failed‘ state is still a state
§ d) capacity to enter into relations with other states.
§ a state must first exist before it can establish ties with other states
§ emphasis on legal independence, as opposed to political or economic
independence
§ ’State-like’ entities may lack legal independence
§ e.g. Scotland as part of UK, Greenland as part of Denmark
Statehood: Additional Considerations:
• States cannot be created illegally
o In violation of fundamental principles of international law:
§ annexation of an existing state
§ creating a state by use of military force, i.e. violation of Article 2 (4) UN
Charter
• BUT: grave violations of international law by a state does not call its statehood into question
• Right to territorial integrity of a state normally prevails over right to external self-
determination of people (non-colonial context)
Statehood: Recognition:
• Montevideo Convention Article 3:
o „The political existence of the state is independent of recognition by the other states.
Even before recognition the state has the rights to defend its integrity and
independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit, to legislate upon its interest, administer its services, and to
define the jurisdiction and competence of its courts. The exercise of these rights has
no other limitation than the exercise of the rights of other states to international law.“
• Declaratory theory
o creation of a state is a matter of law and the fulfillment of legal criteria
o recognition as mere expression of willingness to enter into relations
o accepting the existing conditions of statehood
• Constitutive theory
o statehood gained by virtue of recognition by other states
o existing conditions of statehood must be confirmed by other states
Introduction to PIL and Actors in the International Legal System
Definition: Public International Law (PIL):
• rules and principles regulating the relations between States and other entities, provided they
have international legal personality
• between States
• between States and other entities possessing international legal personality
History:
• 1648: Peace of Westphalia
o Series of peace treaties marking the end of the religious Thirty Years War
-> birth of the modern State: territorial units as equal sovereigns
• 17th century: Hugo Grotius
o ‘father of international law‘
o Author of international law’s most important texts:
§ the law of armed conflict and aggression
§ bonding force of treaties
§ freedom of seas
o use of treaties
• emergence of international organizations
o E.g. Universal Postal Union (1874), International Committee of Red Cross (1863),
Permanent Court of Arbitration (1899)
• main focus on Europe
• Outbreak of World War I
• After WWI:
o establishment of the League of Nations, based in Geneva
§ to secure international peace
o Permanent Court of International Justice in The Hague
-> however: WWII
• after WWII:
o the United Nations establishing with its main objective being protecting and restoring
international peace and security
,United Nations:
• six mains organs (UN Charter Article 7)
o General Assembly
o Security Council
o Economic and Social Council
o Trusteeship Council
o International Court of Justice
o Secretariat
• major issues:
o decolonization:
§ UN Special Committee on Decolonization
§ allowing process of self-determination of peoples
-> largely completed, still few territories waiting for decolonization
o Cold War
§ world divided into two blocks
§ no armed violence, yet a failure of collective security
§ UNSC paralyzed -> unable to adopt a resolution and to act effectively
• International Law today:
o growing interdependence of States, international organizations and multinationals
o emerging fields of international law
o growing number of international organizations:
§ CoE, EU, AU, OAS, NATO
§ but also judicial bodies, e.g. ICC, ECtHR, ITLOS, ICTY, STL
Subjects of International Law:
• Subjects of international law:
o entities which possess international legal personality
• determination of international legal personality:
o entities need to be capable of possessing international rights and obligations and
need to have the capacity to take certain type of actions on the international level
o
International Rights and Obligations:
• States have the duty under international law not to torture individuals
o Convention against Torture (CAT)
• Individuals have the right under international law not to be subjected to torture
o International Covenant on Civil and Political Rights (ICCPR)
,Taking Action on the International Level:
• the capacity to enforce one’s own rights
• to compel other subjects to comply with their duties
o E.g. bring claims before (inter)national courts/tribunal, ability to enter into binding
agreements (e.g. treaties), immunity from the jurisdiction of foreign courts
Actors within International Law: (Subjects):
• States
• International Organization (IO)
• (Indigenous) people
• Individuals
• NGO
• Corporations
States:
• original and major subjects of PIL
• possess full international legal personality
• deriving from the very nature and structure of the international legal system
• UN Charter Article 2 (1): all States by virtue of the principle of sovereign equality enjoy the
same degree of international legal personality
Statehood:
• 1933 Montevideo Convention on the Rights and Duties of States
o Article 1: The state as a person of International law should possess the following
qualifications:
§ a) a permanent population;
§ a group of individuals
§ no minimum number required
§ the population may largely consist of nomads
§ may be ethnically (relatively) homogenous
§ or very divers
§ b) a defined territory;
§ A territorial base upon which to operate
§ no need to have settled boundaries
§ North Sea Shelf Continental case para. 46: „There is (…) no
rule that the land frontiers of a State must be fully delimited
and defined, and often in various places and for long periods
they are not (…)“
§ no fixed lower limit for territory size
§ territory includes:
§ land
§ ground under territory
§ air space above
§ some portions of territorial waters
§ c) government; and
, § a government capable of exercising effective authority over the
population and territory
§ no required form of government
§ requirement of effectiveness not necessarily strictly applied
§ e.g Bosnia-Herzegovina joining the UN while large parts of the
territory were not under effective control of the government
§ during decolonization several entities achieved statehood
and were admitted to the UN while authorities lacked
effective control
§ internal unrest or civil war causing lasting anarchy does not
lead to denial of previously established statehood
§ a ‚failed‘ state is still a state
§ d) capacity to enter into relations with other states.
§ a state must first exist before it can establish ties with other states
§ emphasis on legal independence, as opposed to political or economic
independence
§ ’State-like’ entities may lack legal independence
§ e.g. Scotland as part of UK, Greenland as part of Denmark
Statehood: Additional Considerations:
• States cannot be created illegally
o In violation of fundamental principles of international law:
§ annexation of an existing state
§ creating a state by use of military force, i.e. violation of Article 2 (4) UN
Charter
• BUT: grave violations of international law by a state does not call its statehood into question
• Right to territorial integrity of a state normally prevails over right to external self-
determination of people (non-colonial context)
Statehood: Recognition:
• Montevideo Convention Article 3:
o „The political existence of the state is independent of recognition by the other states.
Even before recognition the state has the rights to defend its integrity and
independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit, to legislate upon its interest, administer its services, and to
define the jurisdiction and competence of its courts. The exercise of these rights has
no other limitation than the exercise of the rights of other states to international law.“
• Declaratory theory
o creation of a state is a matter of law and the fulfillment of legal criteria
o recognition as mere expression of willingness to enter into relations
o accepting the existing conditions of statehood
• Constitutive theory
o statehood gained by virtue of recognition by other states
o existing conditions of statehood must be confirmed by other states
