By: Fadi Antoun
Definition and Subjects of Public International Law:
It is the set of rules governing the relations (setting rights and duties)
between its subjects:
1.
2.
3.
4.
5.
6.
7.
States
International Organizations
Self Autonomies
People
Individuals
Governments in Exile
Corporations having the capacity to conclude treaties
Sources of Public International Law

Binding sources (Hard Law) - Article 38 of the ICJ Statute
a)
international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b)
international custom, as evidence of a general practice accepted as law;
c)
the general principles of law recognized by civilized nations;

According to the International Court of Justice:
“There are no grounds for holding that when a customary international law
contains rules identical to those in a treaty, the later supervenes the former.
A customary international rule continues to exist and to apply separately
from an international treaty even where the two categories of law have an
identical content”

In case a treaty rule and a customary rule were contradicting, and it was
impossible to apply both of them in parallel, the recent rule only applies.

International conventions
An International Convention is one of the kinds of an Internationally
Binding Law Making Treaty. According to the Vienna Convention on the
Law of Treaties 1969, Article 2 (a):
“treaty means an International agreement concluded between states in
written form and governed by International Law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation;”
Other kinds of an International Binding Treaty include (not limited to):
Covenants, Charters, Statutes, Resolutions, Pacts, Protocols, etc.

What about Oral treaties?
Treaties could also be in oral form, however such treaties, theoretically,
will not be governed by the 1969 Vienna Convention, but by Customary
International Law. Practically, both are almost the same.

What about treaties between States and International Organizations or
between International Organizations?
A treaty could also be between International Organizations or between
a State and an International Organization, however such treaties, will
not be governed by the 1969 Vienna Convention, but by the Vienna
Convention on the Law of Treaties between States and International
Organizations or between International Organizations 1986

International Custom
Definition of International Custom
An International Custom is a Binding Oral Legal Rule.
Elements of International Custom
International Custom has two elements; Material Element (State Practice),
and Mental Element (Opinio juris)
The Material Element (State Practice) consists of the following sub-elements:
- Generality
- Uniformity and consistency (i.e. undeviating)
- Frequency and repetition (i.e. habitual)
According to the International Court of Justice, there is no time frame for a
rule to be an International Custom.
The Mental Element (Opinio juris) refers to the will and the intent of the
state to be bound by a certain rule, because such rule is of an interest to it.

However, an International Customary Rule could be non-binding on one
state, if it has previously objected to it, or was silent about it, without being
able to object to it, before it being binding on the International Community.
General Principles of Law Recognized by Civilized Nations
It refers to rules of Law, widely agreed upon and accepted in the Domestic
Law systems of states, namely:
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Latin or Civil Law System (as in France, Germany and Egypt);
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Anglo-Saxon or Common Law System (as in the U.K., U.S.A, and South
Africa.);
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Religious Law (as in Saudi Arabia, Sudan, Indonesia, and Pakistan)
For instance: “no one can be a judge in his own case”, “the burden of proof
lies with the claimant”, “illegal acts cannot breed a right in law”, etc.

Evidence of Law - Article 38 of the ICJ Statute
d. …judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination
of rules of law.

Other Binding Sources
According to the vast majority of Public International Law jurists “Unilateral
Acts of States and International Organizations”

Non-binding sources (Soft Law)
As states are only bound by their consent, non-binding sources or
agreements lack the “Consent to be bound” cornerstone, and therefore are
non-binding. Examples are (not limited to): Declarations and
Recommendations of International Organizations and Conferences
Purposes and Principles of the United Nations and Public
International Law
According to Article 1 of the United Nations Charter, the Purposes of the
United Nations are:
-
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Maintenance of International Peace and Security
Develop friendly relations among nations
Achieve international co-operation in solving international problems
Harmonizing the actions of nations
According to Article 2 of the UN Charter, the Principles of the United Nations
are:
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Sovereign equality of all states
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Good faith
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Peaceful settlement of international disputes
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Non threat or use of force
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Giving the United Nations every assistance in any action it takes in
accordance with the UN Charter, and refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement
action.
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Non Intervention in the domestic affairs of states, with the exception of the
United Nations Security Council enforcement measures under Chapter Vll.
References and useful links
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Oppenheim, Oppenheim’s International Law, Volume 1 Peace, Ninth
Edition
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Ian Brownlie, Principles of Public International Law, Sixth Edition
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Malcolm Evans, International Law, Fourth Edition
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Malcolm N. Shaw, International Law, Sixth Edition
Thank You!