Understanding Public International Law: Key Principles
Fundamentals of Public International Law
Introduction
Compared with the national laws of States, public international law is a legal discipline characterized by institutional weaknesses that motivate uncertainty and relativism at the policy level, deficiencies in the prevention and punishment of violations, and politicization in resolving disputes.
Definition
Professor Suy distinguished three categories of definitions of international law:
- Target-based: The set of rules governing relations between states.
- Material-based: The international character of the relations regulated.
- Technique-based: The procedure for its “positive” creation.
The content of international law is fluid.
While the content of international rules is fluid and changing, a fixed formal nuance remains: their origin, positivization process.
Pastor Ridruejo defines international law as the set of rules positively created by the regulatory powers unique to the international community.
The Foundation of International Law
The main theories on the basis of the binding force of international law are: voluntarist doctrines, arbiters, sociological perspectives, and natural law.
For Pastor Ridruejo, positive international law is grounded in natural law.
The Ius Cogens International
Before 1945, there was controversy about whether States were entirely free to conclude treaties or whether freedom was limited under certain peremptory norms or jus cogens.
The operation of these rules of jus cogens is guaranteed by Article 53 of the Vienna Convention of 1969 on the Law of Treaties.
The Sources of International Law
Paragraph 1 of Article 38 of the Statute of the ICJ is commonly understood to define the sources of international law.
Pastor Ridruejo requires that the truly autonomous sources are only two: custom and treaties.
International Treaties
Treaties are agreements between two or more States under international rules. Article 96.1 of the Spanish Constitution states that “validly concluded international treaties, once officially published in Spain, shall form part of domestic law.”
The position of the Treaty in the system of sources of law depends on the perspective from which it is considered. In terms of international law, there is a prevalence of the Treaty on the internal rules of the States Parties, as they are invoked as justification for failure of the Treaty.
Internally, the Treaty is subordinate to the Constitution. The conclusion of an international treaty containing stipulations contrary to the Constitution shall require prior review of the Constitution.
Another issue is the hierarchy of norms of the Treaty, which is seen by the force of law and therefore subject to judicial review.
However, the relationship between the treaty and domestic law are peculiar; the provisions of the Treaties may be amended, revoked, or suspended as provided in the Agreement or under the general rules of international law.
Doctrine suggests a temporary reservation of matters regulated by the Treaty during its term cannot be regulated in a contradictory manner.