THE

INTERNATIONAL
PUBLIC LAW
and
INTL. RELATIONS
Prof. Anis H. Bajrektarevic
ILAW, ws 2018
Faculty of Law, Sebelas Maret University
Surakarta, Indonesia

General Introduction and

Subjects of International
(Public) Law
Early Traces
Origins (Ius Gentium)
International Law – Classification
International Law – Definition
Sources of International Public
Law
Subjects of International Public
Law

1. Early Traces
XIII c. BC – Intl. Legal Regime Exists
The eldest international agreement saved in
writing – concluded between the
Egyptian Pharaoh Remises II and
the Hittitean king Hatushilam, around
1278 bc.
By its content, the agreement is actually a
Non-Aggression bilateral treaty which
stipulated in its clauses issues of: mutual
 military, technical, logistics and
agricultural assistance to each of
contracting parties if under attack by the
third party.
Treaty of Remisis II directly influenced the
perception, concept and the content of
modern Intl. Law being later on
extensively used as a text-book example
by Ancient Greeks and Romans –
consequently later inter-Greek and
Roman Intl. Agreements stipulated same
provisions in their Non-Aggression
treaties.
2. Origins (Ius Gentium)
The very term: International Law is of
Roman origins;
The great Roman legislation separated Ius
Civile and Ius Gentium – as wanting to
emphasize that the first – Civil Law, was
meant to address the Roman citizenry
 only, while the second – Ius Gentium –
was to comprise and compile the legal
regulations which addressed both the
Roman citizenry and the
foreigners/Peregrines – nationals either
residing outside of Empire or in the
newly occupied Roman provinces;
Since ancient times, the Intl. Law has been
developed, upgraded and codified by
impact of theory and by practical events
of political and legal nature – all way
long up to a modern times:
Hugo Grotius‘ classic of 1625 – The Law of War and
Peace (work considered as founding the modern
discipline of the law of nations);
Montesquieu (Spirit of Law, 1748), taken by Napoleon
(1806); “nations ought to do to one another in
peace, the most good, and in war, the least evil
possible”.

3. Intl. Law -
Classification
Some tentative classifications of
 International Law, as made by
modern theory:

Intl. Public and Intl. Private Law

Universal/Global &
Particular/Regional Intl. Law
Intl. Public Law of Peacetime and of
War
(term “war” as such does not exist in the modern
theory (practice too) – the UN Charter, for
example, rather operates with terms
o“aggression”; “act of violence”; “atrocities”;
“hostilities”; “armed conflicts”, etc. Consequently,
it has been followed by the member states too;
today the former Ministries of War are widely
(re-)named and referred as Ministries of Defense,
the state’s War budgets as the defense budgets,
etc.)

4. Intl. Law – definition

Public Law
Intl. Public Law (law of nations)
Private Law
Intl. Private Law (conflict of
laws)
4.1 Public Law –
determination
Part of law that deals with:
the constitution and constitutional
provisions;
the variety of state functions of its
central and local organs;
every relationship between individuals
and the state;
the relationships among individuals
which are of direct concern to the
state.
Ergo: Public Law includes legal
 fields such as: Constitutional,
Administrative, Tax and
Criminal Law, etc.
4.2 Intl. Public Law –
definition
Or Law of Nations – considers the system
of law regulating:
the interrelationship of sovereign states, their
rights and duties with regard to one another;
Additionally, Intl. FORAs (such as OUN),
corporate entities, and individuals (area of
HR) may have rights & duties under Intl.
Public Law.
Intl. Public Law deals with matters such as:
the formation and recognition of states,
acquisition of state territory;
Treaties and conventions; Intl. Judicial
settlement of disputes;
the law of sea; Law of (air-)space and of outer
space;
Intl. Crimes and Terrorism, Treatment of Aliens,
HR,
 Non-proliferation or/and disarmament treaties,
etc.

Ergo: Intl. Public Law provides the

comprehensive standards of
international behavior for its
subjects.
4.3 Private Law -
definition
It regulates relationships between
individuals which are of no direct
state concern.
It includes:
the law of property and of trusts;
the Family law and legatum ;
the law of contract; Trade law;
the Civil law in general …
4.4 Intl. Private Law –
determination
Or Conflict of laws – essentially is a part
of national legislature that establishes
rules of procedure for dealing with cases
involving so-called foreign element (i.e.
contact with some system of foreign
law).
E.g. if a contract is concluded in Austria but is to
be fulfilled abroad, it will be necessary to
decide (beforehand) which law governs the
validity of that particular contract.
Ergo: the key issue of Intl. Private Law is
closely linked to the question of so-called
CHOICE of LAW or APPLICABLE
LAW.
The Choice of law and to it related issues
are elaborated in details under the Rome
Convention of 1980.
5. Sources of Intl. Public
Law
Dual nature of Intl. Public Law –
genesis of concept/s:
 Universal – Isolated/Independent;
Collective – Selective.

Material Sources
State (legitimate) interests –
primarily political (economic)
and legal interests;
Lately, important is a set of
globally shared, common
principles and interests.
Formal Sources
5.2 Formal Sources
It is far easier to determine formal sources, as
they are not covered by or hidden behind
the foggy category such as “state interest”
or “commonly shared principles”.
Consequently, Formal sources are;
International Treaties and Conventions;
(as an art/instrument of explicit
state consent)
International customs generally respected
as legally and morally binding

(Intl. Customs – unwritten codes of interstate conducts

historically formed by long use and observed by
nations in their mutual intercourse with each other as
kind of obligatory rule)
(as an art/instrument of implicit state
consent)
General legal norms accepted by all civilized
nations;
(evidence of a general practice universally accepted as
fundamental legal principles)
International Court of Justice, its decisions
and legal doctrine;
Unilateral declarations;
UN GA and SC decisions (Resolutions).
Impact of Intl. Law on the
national legislation
Article 25 of the German Constitution
provides that „the general rules of the
law of nations are part of federal law.
They take precedence against domestic
 law and directly create rights and duties
for persons in the country.“
EU Constitution (Convent for future Europe)
goes even beyond the provisions of the
German constitution by including the
1950 European Convention for the
Protection of Human Rights and
Fundamental Freedoms as the integral
part of the Constitution’s text.
In a similar fashion: many other countries
and regional FORAs have the explicit
constitutional/statutory provisions that
automatically accept/domesticate general
rules of intl. law as ius cogens
supervandis.
Codification of
International Law
End of XIX c. – early attempts to codify Intl.
Law (Hague conferences of 1899 & 1907,
and consequently a whole series of
 further Hague instruments)
League of Nations (between the two WW,
rounds of the Hague and Geneva
instruments)
Contemporary codification/s are carried out
under the Intl. Law Commission created
by the UN GA in 1947, under OUN
auspices (so far, closing 16 out of 25
declared areas)
ILC (composed of 34 prominent jurists) is
mandated to help develop and codify
international law, giving first priority to
requests of the UN GA (may also include on
agenda items suggested by itself, other Intl.
FORAs or member states). The ILC initiates
or/and prepares early drafts of international
conventions, as well as does the coordination
between the UN GA and the particular
Convention’s Ad Hoc Committees.

6. Subjects of Intl.
Public Law
States

IOs (primarily OUN)

Individuals
A. States as Subjects of
Intl. Public Law
A.1 Formation and Dissolution of
states
Formation of state
Dissolution of state, partial
and complete loss of state
territory
Continuity and succession of
state
Seizure of territory and the
 Stimson doctrine
(Monroe/Truman) …
Brezhnev doctrine
A. States as Subjects of
Intl. Public Law
A.2 Types of states
the only relevant classification of states for the
Intl. Law: the particular form of state order –
whether state in question is compounded of two
or more entities, or not

Forms of sovereign states

Compounded state (confederation –
federation)
Unitary state
Union (Real union – Personal union)
a. British community of nations (the
Commonwealth) – Personal;
b. French Community (La Francophonie) –
Real Union;
c. CIS (the Commonwealth of Independent
states) – Real Union;
 d. European Union;
e. Vatican.

State and neutrality

Neutrality on Ad Hoc
temporary neutrality as an operational/tactical
Foreign Policy response on current foreign
affairs occurrences
Permanently neutral states
erga omnes & erga tempores State’s Foreign
Policy principle
a. Proclaimed/declared (and stipulated as
such in the state’s
supreme constitutional act) – Swiss type
(joining the UN only 2002)
b. conditioned/imposed (also recorded in the
state’s constitution)
Austria (1955); Finland (after both WWI
and II)

Protectorates and Intl. Mandate

Territories
– rather a relict of the past (e.g. British mandate
over the Palestine
 and Iraq between WW);
– contemporary examples: Namibia, Somalia, W.
Sahara, Kosovo,
East Timor, formerly Iraqi no-fly zones – now
state of Iraq, etc.
A.3 Recognition of states
& governments
By early XXI c., there are nearly 200 sovereign
states, three times as many as before the
WWII.
Constitutive and Declarative Theory
As one of the most fundamental issues of Intl.
Public Law, the question of recognition of states
arises every time when a certain entity:
– Appears for the first time;
– Existing entity undergoes a
fundamental change, be it:
a. cession (to resign and deliver its
sovereignty to);
b. amalgamation (to mix/unite);
c. (con-) federalization;
d. secession or subdivision.
Constitutive theory – very act of intl.
recognition makes one entity to finally
 be regarded as state;
Declarative theory – intl. recognition is
only the formal acceptance of an
already, domestically established fact.

The history and contemporary practice

of many states shows that the very
act of (international) recognition of
a new state entity has always been
and it still is essentially a political
decision.
Certainly, apart from its political dimension,
the very recognition comes into close
consideration only when other
elementary – legal – criteria are fulfilled.
There are:
Entity that seeks intl. recognition has
clearly defined state-territory (which is
effectively controlled – at least its major
part);
Permanent population which respects
the government’s legitimacy over the
 defined territory; and finally
Sovereign government with a
reasonable prospect of permanency
(which therefore has the capacity to
enter into active relations with other
states)
(the very concept of sovereignty and intl.
law /meritory powers domestically and
independence externally/ has been developed
by Thomas Hobbes and Hugo Grotius after
the Peace of Westphalia – an interstate
peace accord of 1648 considered as the
earliest phase of modern international political
system).
Judicial and Political
Nature of Recognition of
State
Recognition of Government:
Conception and Nature
Be it of State or of Government, the dual
nature of recognition remains; as being
 both:
– highly demanding, strict legal act; but on
the other hand
– also a highly-driven political act, usually
issued as a very formal deliberation,
signed by head of state or government.

Constitutional and Revolutionary

government
(Tobar, W. Wilson and Estrado’s
doctrines)
Government: de facto and de iure
Conditional(ity) recognition of
government
A.4 Fundamental Rights &
Obligations of states
Declaration on Rights and Obligations of
States
(and main theories in this respect)
Sovereignty
Equality of States
Right of (individual or collective) Self-
defense
Right of Intl. Relations and of Intl. Respect
Law Abuse in Intl. Public Law (Abus non est
Usus)
– Consuetudo contra rationem iuris introducta
potius usurpatio
quam consuetudo appellari debet

A.5 State territory

State territory – conception
Intl. State borders: white, blue and
green
demarcation of boundaries is internationally
accepted/recognized
Airspace: national and international
(Outer Space – rei omnia)
International Rivers
a. Danube;
 b. Lakes (with an international traffic regime).
Seas (Costal and Archipelagic states)
a. territorial waters (from 3 to max. 12
nautical miles), incl. national maritime zones,
shores & their continental shelf, nationally
declared exclusive econ. zones + seabed
exploitation, (from 24 to 200 n.m.) etc.;
b. international waters/high or open seas –
res communis;
c. free waterways.
Corridors – free passes (land-lock, costal
and archipelagic states)
a. national airspace corridors;
b. land corridors and/or freeways;
c. sea passes and channels (intl. Navigation
regime of channels).

State and Nationality

One of the elementary state rights of
governing its territory is exercised
through the promulgation of its laws.
Consequently, every state is solely
responsible to determine its own regimes
of nationals (very possession of nationality /of
one or more countries/ grants privileges and
 imposes obligations).
Domestically practiced and internationally
recognized are the following modalities in
application of regime of nationals:
Ius Soli – nationality is normally acquired
by birth in the state territory;
Ius Sanguinis – newborn is a descendent
of a national, or/and
occasionally by naturalization, marriage or
an application; or
occupation, cession or similar change in the
nature of a state.
Apatrid – stateless person (denied to or
deprived from its nationality without
acquiring an alternative).
Status documents: birth certificate and IDs
(alternatively travel documents including
passport) are prima facie evidence of
someone’s nationality/citizenship.
State Jurisdiction
Every state is fully entitled to exercise
its domestic
Jurisprudence. Following are the
modalities:
Universal jurisdiction: (irrespective to
nationality)
Over (high-seas) pirates and war-criminals
State (Special) jurisdiction:
TERRITORIAL PRINCIPLE: (in respect to
nationality)
The jurisdiction of a state is generally
recognized as extending over all persons
(esp. nationals), property, acts and events
within its territory; including the national air-
space, territorial waters (sea-bed and
continental shelf as well as the inner sea of
the archipelago states).
EXTRATERRITORIAL PRINCIPLE: (in
respect to nationality)
Jurisdiction also relates to aircraft registered
in, and ships flying the flag of, a state and to
a state’s nationals abroad – e.g. diplomats
and military personal serving abroad.

A.6 State responsibility

Conception:
Political responsibility, Legal liability
 and
its (non–) transferability
Promulgation of legitimate state interests
and/or settlement of conflicting interests
are main activities of state in domain of
Foreign Affairs/International Relations
In conformity with the (Montevideo) Convention
on Right and Duties of States (1933), and
other subsequent intl. instruments
Settlement of conflict or/and promulgation
of interests of one state can be of
political and of legal nature.
Therefore, any particular acting of state
through its representatives can bear
either political responsibility or/and legal
liability
– on two levels: domestically and
internationally.
Acts of state and its
international legitimacy
In traditional sense as formulated by the
Permanent Court of International Justice:
the very right of entering into
international engagements, so-called
right of international conduct is an
(exclusive) attribute of state sovereignty.
However, particular state acting will enjoy
the international legitimacy recognition if
being conducted:
– in accord with the international law; and/or at
least
– in accord with the commonly recognized moral
norm (ethically driven in its intention
or/and in its final result).
Ergo: international legitimacy of particular
foreign policy action of state is:
external
commonly shared conviction
that such an action is fair and just or at least
tolerable behavior among states.

Responsibility of
 state official
B. IOs as subjects of
Intl. Public Law
Intro: Intl. Congresses & Dipl.
Conferences
Precursors and the League of Nations
Creation of Universal organization
(Breton Woods and Dumbarton Oaks
settlements)
The UN Charter
UN Members
UN Organs
Regional Organizations
Other IOs and IGOs
NGOs

B.1 Intl. Congresses &

 Diplomatic conferences
Principle of (political) Balance-of-Powers
Deliberations of Intl. Congresses and
Dipl. Conferences
Political & Juridical nature of multilateral
meetings
Transformation and outcomes of
modern multilateral meetings
B.2 Precursors and the League of
Nations
Predecessors
League of Nations
B.3 Creation of Universal
Organization
Roosevelt’s “Four Policeman Concept”
Breton Woods and Dumbarton Oaks (21
VIII 44) settlements
San Francisco conference (June 26,
1945) – signing the Charter of the
OUN by the 46 founder-member
 states.

B.4 The UN Charter (signed as of

June 26, 1945)
Purpose of the OUN
Substantially – the UN is a Standing
diplomatic conference;
Formally – it is a universal/global association
of states which, on signing the UN
Charter, subscribe to its purpose and
agree to act in accordance with its
principles.
Principles of the Charter
(i) principle of sovereign equality of states;
(ii) principle of bonae fidei commitment to the
obligations assumed;
(iii) principle of peaceful adjustment and
settlement of intl. disputes;
(iv) principle of political independence &
territorial integrity of states;
(v) principle of the State’s domestic
jurisdiction in internal matters.
Political and Juridical nature of OUN
Revision procedure
B.5 UN Members
Admission to membership
(signatures and ratification instruments)
Expulsion
Position of non-members
B.6 Principal UN Organs –
UN System
I. UN General Assembly
II. Security Council
III. Economic and Social Council
(ECOSOC)
IV. Trusteeship Council
V. International Court of Justice
VI. UN Secretary General and
Secretariat
VII. UN – affiliated entities:
– Regional UN
bodies/committees
– Specialized Agencies
I. UN General Assembly – legislative and
political body
a. Composition (193 MS – as of July 2011; South
Sudan being the last)
b. Regular annual sessions and Special
sessions
c. Organizational structure (Plenary/6 main
Committees/Ad Hoc bodies)
d. Functions and Powers (Area of
competence)
– OUN Budget, Programs and Funds (UNICEF,
UNHCR, UNDP, etc.)
– Other UN Entities (UNU, etc.)
– Research and Training Institutes (UNITAR,
UNICRI, etc.)
e. Decision-making mechanism and
Voting procedure (2/3)
f. Juridical nature of General Assembly
II. UN Security Council - legislative and
political body
 a.Composition
b. Area of competence (Functions and
Powers) formal enforcement
mechanism of the UN Charter is given to the SC
– Committees, Missions and Mandates
– Peacekeeping operations
c. Decision-making mechanism and
Voting procedure (little veto)
d. Political and Juridical nature of Veto

Five new Non-permanent members

elected to SC (15)
In October 2014, Angola, Malaysia, New
Zealand, Venezuela and Spain were
elected to become the next five non-
permanent members of UN SC according
to a pre-arranged geographical
distribution (allocating two seats to
African and Asian countries, two & one
seats to Europe and one seat to a Latin
American or Caribbean state)
– period 01 JAN 15 – 31 DEC 16.
 The quintet will take up their seats on 01
January 2015, replacing Argentina,
Australia, Luxembourg, South Korea and
Rwanda which are to end their two-year
term by 31 December 2014.
The two-year non-renewable term of the
other five non-permanent members –
Chad, Chile, Jordan, Lithuania and
Nigeria – are due to run out on 31
December 2015.

III.ECOSOC (Economic and Social

Council)
Specialized body directly linked to the UN GA
Clearing-house for the SA and other Intl.
FORAs
Work carried out in many Functional and 5
Regional Commissions
IV.Trusteeship Council – specialized
body, tied to the GA
V. International Court of Justice –
independent body
as the principal judicial organ of the UN, with
the automatic membership to all UN member
states;
Composed of 15 judges, elected by separate
absolute majorities of both UN GA and SC,
and serving nine-year renewable term;
(additional, Ad Hoc judges are appointed to the
court for particular cases)
only states may be parties in cases before the
Court (legally binding)
ICJ is empowered with general compulsory
jurisdiction in respect to:
The interpretation of a treaty (i); Any question of
international law (ii);
The existence of any fact which, if established,
would constitute a breach of an intl.
obligation/s (iii); The nature or extent of the
reparation to be made for the breach of an intl.
obligation (iv).
ICJ may issue the advisory opinion upon
requesting FORA or state which is not legally
binding
International Criminal Court (newly
created, Hague based)
VI. UN Secretary General and
Secretariat
a. Position of Secretary General
(Functions and Powers)
– appointed by the GA upon the SC
recommendation for a 5 years renewable
term; (since 1945, Ban Ki-moon is the 8th serving
SecG.)
– freedom of initiative (as to bring to the
attention of the UN SC any matter relevant
to the intl. peace and security);
b. Role of the Secretariat (roughly
65,000 persons)
c. The 1946 Convention on the Privileges &
Immunities of the OUN
VII. UN Affiliated entities –
Specialized Agencies
all coordinating its work trough ECOSOC -
a. Specialized Agencies:
– The 1947 UN Convention on the Privileges
and Immunities of
the Specialized Agencies
– ILO, FAO, UNESCO, WHO, WB Group
(IBRD, IDA, IFC, etc.), IMF, ITU, ICAO,
 UPU, WMO, IMO, WIPO, IFAD, UNIDO – 16 in
total
b. Related Organizations (Spec.
Agencies similar status)
– IAEA, WTO (tourism), CTBTO (PrepCom),
OPCW (Proh. Chem.), OSSA
c. Regional UN bodies/committees:
– e.g. for Africa, for Pacific, for Europe, etc.

C. Individuals as subjects of
Intl. Public law
Introduction
Emergence of intl. HR law and
promulgation of individuals as subjects of
Intl. Law is probably the most remarkable
political, social and legal development of
the entire 20th century
UN Charter
Human rights declarations:
– Universal Declaration of Human Rights (1948)
– European Convention for the Protection of
Human Rights and Fundamental
Freedoms (Rome of 1950)
Fundamental Human Rights
a. Right of Self-determination
b. Civic and Political rights (ICCPR of 1966/76)
c. Economic, Social and Cultural rights (ICESCR
of 1976)
d. Slavery, Nürnberg principles, Genocide,
Discrimination
e. Right of Asylum: Refugees and Stateless
persons
(Geneva Convention of 1951 & NY Protocol of
1967)
f. Minorities
Universal and Regional protection of
Human Rights
European (incl. the European Court of HR) and
American system

UN Charter – PREAMBLE
WE THE PEOPLES OF THE UNITED NATIONS
DETERMINED
to save succeeding generations from the scourge
of war, which twice in our lifetime has brought
 untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in
the equal rights of men and women and of
nations large and small, and
to establish conditions under which justice and
respect for the obligations arising from treaties
and other sources of international law can be
maintained, and
to promote social progress and better standards
of life in larger freedom,
AND FOR THESE ENDS
to practice tolerance and live together in peace
with one another as good neighbours, and
to unite our strength to maintain international
peace and security, and
to ensure, by the acceptance of principles and the
institution of methods, that armed force shall
not be used, save in the common interest, and

to employ international machinery for the

promotion of the economic and social
advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO
ACCOMPLISH THESE AIMS.
UN Charter
Article 2 (4) – Chapter One
All Members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any other manner inconsistent
with the Purposes of the United Nations.

Article 51 – Chapter Seven

Nothing in the present Charter shall impair the
inherent right of individual or collective self-
defence if an armed attack occurs against a
Member of the United Nations, until the Security
Council has taken measures necessary to
maintain international peace and security.
Measures taken by Members in the exercise of
this right of self-defence shall be immediately
reported to the Security Council and shall not in
any way affect the authority and responsibility of
the Security Council under the present Charter to
take at any time such action as it deems
necessary in order to maintain or restore
international peace and security.