PUBLIC INTERNATIONAL LAW

Law-3102

Daw Tin Tin Cho

Associate Professor
Law Department
Yangon University of Distance Education

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 Chapter I
Origin, Nature and Sources of International Law
Chapter II
The Relation between International Law and Municipal
Law
Chapter III
Subjects of International Law
Chapter IV
States as International Persons
Chapter V
Recognition of States and Governments
Chapter VI
State Territory

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 Chapter I
Origin, Nature and Sources of International Law
•States, like individuals, cannot live in
isolation.
•Just as men could not live together in a
society without laws to regulate their
actions, so also states could not have mutual
intercourse without international law to
regulate their conduct.
•is a necessity.
•Call the law of nations or the inter- State
law.
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•The roots of international law go very far
back into history.
•Such roots are to be found in the rules and
usages of the ancient Indians, Greeks and
Romans.

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 Historical Development of
International Law
Three different schools of writers on
international law

Naturalists,
Positivists
Grotians
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The Naturalists maintain that
• International law is only a part of the
law of nature.
The Positivists defend
 The existence of positive international law
as the outcome of custom and international
treaties.
The Grotians stand
•midway between the Naturalists and the
Positivists.
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The science of international law further
developed during the 19th century under the
influence of three factors.
•to abide by the rules of international law
•marked by the conclusion of several law-
making treaties
•positive theory of international law by writers

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  Other important developments in the 20th century

• The establishment of the League of Nations witnessed

attempts at codifications of international law.
• The Permanent Court of International Justice was set up in
1921 as an authoritative international judicial tribunal.
• The emergence of the United Nations is another landmark in
the development of international law.
• The International Court of Justice is the principal judicial
organ of the United Nations and International Law
Commission
• the International Law Commission is now responsible for
codification and progressive development of international
law.
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 Definition of International Law
by Jeremy Bentham
 'the law of nations' or 'the law among nations‟
According to Oppenheim
 the name for the body of customary and treaty rules which are
considered legally binding by states in their intercourse with each
other“
J.L.Brierly's definition
 the body of rules and principles of action which are binding upon
civilized states in their relation with one another.
Hackworth defines
 International Law consists of a body of rules governing the relations
between state.

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Schwarzenberg maintains that
• International law is the body of legal rules which apply between
sovereign states and such entities as have been granted international
personality.
In the "Lotus Case", the PCIJ declared:
• "International Law governs relations between
independent states.

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• From the above mentioned definitions of different jurists, we may
conclude that international law is primarily a system regulating the
rights and duties of state inter se.
• The main object of international law has been to produce a just system of
international relations.

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Some Branches of International Law
International criminal law
International humanitarian law
Law of the Sea
Law of State Responsibility
International environmental law
International air and space law

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Sources of International Law
In accordance with Article 38(1) of the Statute of the International
Court of Justice, the sources of international law are as follows:
Primary sources
 International Conventions or Treaties
 International Custom
 The general principles of law recognized by civilized nations
Secondary sources
 Judicial decisions and the teaching of the most highly qualified
publicists of various nations

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 International Convention or Treaties
 Most important source of the present day international law
 Treaties are binding and legally enforced upon the parties to it.
 Treaties can be bilateral or multilateral

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 Custom
older and the original source of international law
When a usage receives the general acceptance or
recognition by the states in their mutual relations,
that such habit or usage has become right as well
as obligation of the states; it becomes a custom.
Although a custom is widely followed, it does not
make it a rule of international law unless it is
accepted by the states as legally binding in order
to be considered rules of international law, referred
to as opinio juris.
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 The General Principles of Law

International Court to apply, in addition to treaties

and custom, the general principles of law recognized
by civilized nations

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 Judicial Decisions
• judicial decisions as a subsidiary means for the
determination of rules of law
• doctrine of judicial precedent, decision of
international tribunals are not a direct source of law
in international adjudication
• considerable influence as an impartial and well-
considered statement of the law by jurists of
authority
• often relied upon in argument and decision
• Judgments of municipal tribunals are of considerable
practical importance for determining what is the
correct rule of international law

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 The writings of publicists
•A subsidiary means for the
determination of rules of law to provide
useful evidence of what the law not as a
laws creating factor „the teachings of the
most highly qualified publicists of the
various nations.

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 Chapter II
The Relation between International
Law and Municipal Law
Theoretical approach သဘောတရားဘရးရာသီအိုရမ
ီ ျား
There are two main theories regarding the relation between international law
and municipal law namely-
(i) dualistic theory ဒးိတ္တအျြငံ

(ii) monistic theory ဧကလြံဵစဉံအျြငံ

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 Dualistic Theory
International law and municipal law are essentially different from each
other.

1. The sources of municipal law are statues enacted by the law-
giving authority and custom grow up within the boundaries of
the state.
The sources of international law are law-making treaties
concluded by states and custom grown up among states.
2. Municipal law regulates relations between the individuals under
the sway of a state and the relations between the state and the
individual.
International law regulates relations between states.
3. Municipal law is a law of sovereign over individuals subjected to
his sway.
International law is a law between sovereign states
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 Monistic Theory
The dualistic theory is opposed by what may be called
the monistic theory.

1. In both it is ultimately the conduct of the individuals

which is regulated by law. The only difference is that in
the international sphere the consequences of such conduct
are attributed to the state.

2. In both systems law is essentially a command binding

upon the subjects of the law independently of their will.

3. International law and municipal law, far from being

essentially different, must be regarded as manifestations
of a single conception of law.
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International law in the municipal legal system
Doctrine of Incorporation ေပါငံဵစညံဵျြငံဵြူသေောတရာဵ
• a rule of international law automatically becomes part of municipal law
without the need for express adoption
• For example, the United Kingdom in respect of international customary
law

Doctrine of transformation အသးငံေျပာငံဵလဲျြငံဵြူသေောတရာဵ

• rules of international law do not become part of municipal law until they
have been specifically adopted by the State.
• A municipal court cannot apply a particular rule of international law until
that particular rule has been deliberately 'transformed' into municipal law
in the appropriate manner, as by legislation.

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 The Practice of States
British Practice
British practice draws a distinction
between-
•customary international law and
•Treaties
Case
Chaung Chi Cheung vs The King
1939 AC 160
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 American Practice
International custom
• International custom is deemed as part to the law of the
land.
• However, a later clear Statute will prevail over earlier
customary international law.
Treaties
• The Constitution of the United States gives supreme
importance to treaties.
• As soon as the President ratifies a treaty, it is
transformed into American law.
• But a Statue passed by Congress overrules previous
treaties.
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 Judicial application of international law in
the Union of Myanmar
Before the second world war there had been actually no
international law case decided by a Myanmar court.
• Japanese occupation of Myanmar during the Second
world war courts had the opportunity to decide cases
involving important questions of international law.
Judicial Attitude before Independence, it was held by the
High Court that the Hague Regulations must be treated by
the courts of Myanmar as incorporated into the municipal
law of Myanmar, to such extent as they are not inconsistent
with the ordinary law of the country.
• Case The King v Maung Hmin
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 Judicial Attitude after Independence, For a
particular principle of international law to be
acceptable in Myanmar Courts, firstly it must
be generally recognized customary law of the
nations and secondly it must not conflict with
Myanmar municipal law.
• Case
Evgoni T. Kovtunenko v U Law Yone 1960
B.L.R

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 Chapter III
Subjects of International Law
• A subject of international law may, be defined as an entity who has rights and
duties under international law.
• At the same time, we may say that a subject of international law is an entity
who possesses "international personality".
• Since international law is the name of a body of rules which regulate the
conduct of the states in their intercourse with one another, state are the
principal subjects of international law.
• This is also in conformity with the nature of international law as the law of
nations or the "law among nations".

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•The traditional view is that only states are
subjects of international law.
•Professor Oppenheim is a staunch
supporter of the traditional view.
•In his opinion, "the subjects of the rights
and duties arising from the law of nations
are states solely and exclusively.

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• With the emergence of the United Nations, it has been obvious that the
traditional doctrine, namely.
• States only are subjects of international law, can no longer exist.
• International law is no longer centered exclusively on the rights and
duties of States.
• It has recognized the independent existence of a variety of international
institutions and, within definite limits, has imposed obligations on, and
granted rights to, individuals.

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• Therefore, the modern view is that while States
will remain by far the most important subjects of
the law of nations, they are no longer the exclusive
subjects of international law.
• There are entities other than State as subjects of
present-day international law.

States
International Organizations
Individuals
Corporations

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 States
States are the principal subjects of international law
 According to Holland, not only enjoys full external sovereignty, but also is
a recognized member of the family of nations.
 According to Fenwick, " a permanently organized political society,
occupying fixed territory and enjoying within the boundaries of that
territory freedom from control by any other state.

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In the view of Oppenheim, when the people is
settled in a country under its own sovereign
government'.
• The characteristics of a state in Oppenheim's
sense;
must be a people who live together as a
community (different races or religions, or of
different colour)
must be a country in which the people has settled
down (whether the country is small or large)
must be a government
must be a sovereign government
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 International Organizations

“The International Court of Justice has expressly

held that the United Nations is an international
person.”
the Court has come to the conclusion that
the Organization is an international person
is legal personality and rights and duties
capable of possessing international rights
has capacity to maintain its rights by bringing
international claims.
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 Individuals
Individuals cannot, strictly speaking, be regarded as subjects of
international law
According to Article 34 (1) of the Statue of I.CJ,
• "only states may be parties in cases before the Court.“
• An individual does not have access to the World Court. He may do so only
through the state of which he is a national.

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Exceptional Norms
 In exceptional cases, individuals have been given by treaty the right
to appear before international tribunals.
 Exceptionally norms of international law which establish individual
responsibility by directing sanctions against the private person who
commits.
• piracy jure gentium; ပငံလယံဓါဵျပြှု၊
• slave-trading; ကျွနံြ့ာဵကိုေရာဵဝယံေသာကုနံသးယံြှု၊
• illegal use of flag on the High Sea;
ကြံဵေဝဵပငံလယံရသ ္ိ ေေောာေပ်တးငံတရာဵြဝငံအလဳလွှငထ ဴံ ူြ၊ှု
 Crimes against peace, war crimes or crimes against humanity;
 ွငိြံဵြ့ြံဵေရဵဆန့ဴံက့ငံျပစံြှု၊စစံျပစံြှု(သို ဴြဟုတံ)လူသာဵဆန့ဴံက့ငံျပစံ
ြှုန္ငံဴ
 The crime of Genocide; အစုလိုကံအျပုဳလိုကံသတံျဖတံသညဴံျပစံြှု
 Such individuals as sovereigns, diplomats and international civil
servants can exercise privileges and immunities in accordance with
international
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law. 35
Corporations
• As far as international personality is concerned,
companies and corporations are treated on the same
footing as individuals.
• It is true that for commercial purposes, states deal
with companies and corporations all over the world.
• Normally, their relationship is governed by the
municipal law of one or more states.
• However, it is possible for the contractual
relationship between a state and a corporation to be
governed by international law.
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 Chapter IV
States as International Persons
Nature of State
According to the "Motevideo Convention on Rights and Duties of States"
1933 the state as a person of international law should possess the following
qualifications.

 a permanent population;
 a defined territory;
 a government; and
 a capacity to enter into relations with other states.

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 Basic Rights and Duties of States
"Draft Declaration on the Rights and Duties of States" drawn up by the
International Law Commission of the United Nations in 1949.

The rights listed in the Draft Declaration include:

• the right to independence;
• the right of territorial jurisdiction;
• the right to equality in law with other states; and
• the right of self-defence.
The duties include:
• the duty to refrain from intervention in the affairs of other states:
• the duty of settling disputes peacefully;
• the duty to refrain from resorting to war;
• the duty of carrying out in good faith treaty obligations;
• the duty of observing human rights.

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 Sovereignty
Bodin said that sovereignty as the absolute and perpetual power within a
state.
Hobbes maintaining that a sovereign was not bound by anything, and had a
right over everything, even over religion.
Pufendorf maintained that sovereignty is the supreme power in a state, but
not absolute power.

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 Doctrine of Equality of States

Legal equality according to Oppenheim, has four

important consequences.
• every state has a right to a vote, but, unless it has agreed
otherwise, to one vote only.
• Legally the vote of the weakest and smallest state has as much
weight as the vote of the largest and most powerful.
• no state can claim jurisdiction over another.
• The courts of one state do not question the validity or legality
of the official acts of another sovereign state.

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Charter of the United Nations
• Article (1) speaks of respect for the principle of equal
rights.
• Article 2 (1) says that "the Organization is based on the
principle of the sovereign equality of all its members".

One exception to the doctrine of equality

• Permanent membership of the Security Council of the
United Nations is confined to five "Great Powers" only.
• These powers enjoy a 'right of veto'

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 Intervention
• International Law, generally, forbids intervention.
• Dictatorial interference by a state in the affairs of another state
• A 'dictatorial interference' is an interference by the threat or use of force, in
opposition to the will of the particular state affected and
• Almost always serving to impair the political independence of that state.

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 Kinds of Interventions

•Internal intervention
•External intervention
•Punitive intervention

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 Chapter V
Recognition of States and Governments

Theories of Recognition

(a) constitutive theory, and

ဖးဲ ဴစညံဵပုဳ အသိအြ္တံျပုသီအိုရီ န္ငံဴ
(b) declaratory or evidentiary theory
ေြကညာ အသိအြ္တံျပု သီအိုရီ

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 The Meaning of “Recognition”
Recognition generally refers to one state‟s willingness to establish or maintain
official relations with another State or its government
Types of recognition
Recognition of States
Recognition of Government
What is the difference between recognition of state and government?
• The tree is the State
• The leave is the government
• While governments (leaves) may come and go, the state (the tree remains)

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 Constitutive Theory

•without recognition a State does not exist,

only recognition constitutes a State
•as an international person and
•gives it clear-cut rights and
responsibilities.

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 Declaratory Theory
•Statehood exists prior to recognition and
• The act of recognition is merely a formal
acknowledgement of an already established
fact.

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According to Montevideo Convention: 1933,
• The political existence of the State is
independent of recognition by the other States.
• Even before recognition the State has the right
to defend its integrity and independence,
•to legislate upon its interests, and
•to define the jurisdiction and competence of its
courts".

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de facto recognition and de jure recognition
အြ္နံတကယံ အသိအြ္တံျပုျြငံဵန္ငဴံ တရာဵဝငံအသိအြ္တံျပုျြငံဵ

• There are no international treaty rules regarding this matter.

• de jure recognition = premature recognition
တရာဵဝငံအသိအြ္တံျပုျြငံဵ

• de facto recognition = the practice of recognition before recognizing a

State government de jure အြ္နံတကယံ အသိအြ္တံျပုျြငံဵ

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 De jure recognition
• recognized State or government fulfil the test
• laid down by international law
• for effective participation in international community
• more stable in character than is so in the case of de facto recognition
• Example: Indonesia obtained its de facto recognition in 1945-1949 and it
obtained its de jure recognition after recovering its sovereignty.

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 De facto recognition
• withdrawn if the absent requirements of recognition fall to materialize
• is incomplete
• not yet formal exchange of diplomatic representatives.
• Example: Iranian revolution that has made Shah Reza Pahlevi step down.

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The significances of recognition for a state
 To obtain equality status with other members of the international
community
 To acquire international rights and contracting international
obligations
 To engage in international relations

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 Chapter VI
State Territory
• States territory is that defined portion of the surface of
the globe which is subjected to the sovereignty of the
state.
• A state without a territory is not a state.
• Space within which the State exercises its supreme
authority
• International law recognizes the supreme authority of
every state within its territory.
• This is called “territorial sovereignty.

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 Territorial Sovereignty
• can exist one full sovereign State only
Exceptions
• joint tenancy of two or more States, For example, since
1898 the Sudan has been under the condo minion of Great
Britain and Egypt
• Lease or Pledge of a piece of territory by one State to
another State, For instance, China in 1898 leased Wei-
Hai-Wei to Great Britain.
• perpetual grant of the use, occupation and control of a
piece of territory by the owner' State to another State
• the territory of a Federal State.
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 Boundaries of State Territory
•Separate the territory of one State from
that of another
•Natural boundaries may consist of water, a
range of rocks or mountains, deserts,
forests
•Artificial boundaries may consist of ports,
stones, walls, trenches, roads, canals

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Acquisition of territorial sovereignty

•Occupation
• prescription
•Conquest
•Accretion
•Cession

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 Different Parts of State Territory
• land territory:
place of the land within its boundaries
• maritime territory: and
Rivers, Lakes and Land-locked Seas, Bays, Straits,
Canals, Territorial Sea (The UN Convention allows for
the establishment of a territorial sea of up to 12 nautical
miles in breadth), Contiguous Zone (24 nautical miles
form the baselines), exclusive economic zone (200
nautical miles form the baselines)
• territorial air space
Paris Convention, 1919 air space over the high seas
and over unoccupied territory is absolutely free

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