Good to see you again, inquisitive one! Accessing this page is a great way to begin your studies for the interview as well as your sessions at Yonsei ULS. Without further ado, let us delve straight in.

 

What is PIL?

At an elementary level, Public International Law – in its contemporary meaning – arguably refers to the set of rules that govern State to State relations. In the 1927 The Lotus Case (France v. Turkey), PCIJ provided the traditional definition of PIL as “law among states.”

Under this legal system, States are generally understood as the main actors with legal personality (legal person or Subjects of PIL). This concept of States being the main “Subjects of PIL” is comparable to the domestic legal system inwhere each person is considered to have a legal personality which allows him or her to inter alia enter into contracts by giving consent, sue another person or the government through the courts, and register marriage at or pay taxes to the government. Under PIL, States – like humans under a domestic legal system – hold rights as well as obligations. Below are some examples that may be familiar to you as well.

Rights/Powers of States (or Sovereignty)

  • Right to 200 nautical miles of EEZ (Economic Exclusive Zone)
  • Right to Continental Shelf
  • Right/Power to enter into Treaties with other States
  • Right to prescribe domestic legislation
  • Right to settle disputes through international courts or arbitration
  • Sovereign Rights

Obligations of States

  • Duty Not to Cause Trans-boundary Harm
  • Obligation to Protect and Preserve the Marine Environment
  • Obligation to Protect Human Rights
  • Obligation to not commit Genocide
  • Pacta sunt servanda (promises must be kept)
  • Good Faith

[TIP] Note that, students of PIL do not use terms such as ‘nation’ or ‘country’ in making reference to sovereign entities such as United States of America, Federal Republic of Germany, and Republic of Korea. Failing to adhere to this academic practice will most likely result in your losing credibility amongst your peers.

As you can see, the above examples do not constitute an exhaustive list of the rights and obligations prescribed to States under PIL. Naturally, the question arises: where can we find such an exhaustive list? Unfortunately, such a comprehensive list does not exist. Instead, we need to refer to “Sources of PIL” from which such rights and obligations derive from.

As codified in the Article 38(1) of the Statute of the International Court of Justice (Chapter XIV of the UN Charter), Sources of PIL are best explained to include:

  • Treaties
  • Customary International Law
  • General Principles of Law
  • Judicial Decisions and the Teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law

Best return to your assigned reading to learn more about Sources of PIL.

 

What is and What is Not PIL?

However, this traditional definition of PIL (“law among States”) is being gradually replaced by “law governing the international community” as new entities such as ‘international organizations’ and ‘individuals’ began to gain legal personalities under PIL (“Subjects of PIL”). United Nations and the Red Cross have the power to sign treaties as sovereign States do. Individuals may also bring a case against sovereign states under the International Human Rights regime. States definitely remain as the main Subjects of PIL, however, no longer the only ones. Let us discern the scope of PIL.

  • International Business Transactions or International Transaction Law (NO)
    • Trade law governing the contract relations of private entities such as payment of funds, shipping, and insurance
      • private entities are not legal persons under PIL (not Subjects of PIL)
    • UNCITRAL (UN Commission on International Trade Law) is an exception
  • Transnational Law (NO)
    • All laws governing acts and cases that surpasses territorial boundaries (domestic and international)
    • Yale School of thought / American thought of categorizing law
  • Global Administrative Law (GAL) (NO)
    • Attempt to apply domestic administrative laws in the decision making process of international organizations
    • Global Law does not exist as of yet (no World Government)
    • NYU School of thought
  • International Trade Law (PIL)
    • laws governing the trade relations “amongst states” such as WTO & FTA
  • International Economic Law (PIL)
    • laws governing the economic relations “amongst states”
  • EU Law (PIL)
    • “a new legal order”
    • exceptional case inwhere PIL has direct effect on domestic laws of states

 

Where did PIL originate from?

As is the case of numerous modern institutions, PIL or set of rules governing interstate affairs and relations was also initially a European creation dating back to the 1648 Peace of Westphalia. It is generally understood that as a result of the 30 years war (1618 – 1848) that ended the Catholic Pope’s rule over Europeans, Sovereign States or Territorial States were thus born. 1648 Peace of Westphalia was the series of peace treaties that were signed between the Habsburgs and their Catholic allies v. the Protestant (Sweden, Denmark, Dutch, Holy Roman Principalities) and Catholic (France) Anti-Habsburg allies, effectively ending the Holy Roman Empire and recognizing the independence of  each sovereign (monarch of each region at that time). Yes, some famous modern political theorists have argued that “sovereignty” of a State lies within its people, however, at its origin, sovereignty was meant to indicate the vested powers of a monarch in Europe. This sovereign power indicated freedom to decide on a religion (or to not decide) within each state as well as draw territorial borderlines which are defining characteristics of powers exercised by a modern “State.”

The existence of International Relations or inter-state relations (sovereign states) presumes the existence of a rule that governs it – Public International Law. Indeed, there were treaties and legal concepts that predate the 1648 Peace of Westphalia, however, such are understood as to fall short of qualifying the modern definition of Public International Law – perhaps they can be considered when discussing inter-temporal law. For example the 1494 Treaty of Tordesillas is not considered as PIL in its modern definition for Spain and Portugal at that time were not “sovereign states,” but kingdoms subordinate to the Pope in Vatican.

The very first non-Christian state to be incorporated into the European legal order of PIL was Ottoman Empire (Turkey) via her invitation to the 1856 Congress of Paris. Republic of Korea was first incorporated into the PIL order via the 1895 Treaty of Shimonoseki concluded as a result of the first Sino-Japanese war. Article 1 of the treaty stated that “China recognizes definitively the full and complete independence and autonomy of Korea…”

 

1648 – World War I (1914)

This era is characterized by the coexistence of capitulation and colonialism systems. European states did not consider non-European states in Asia and Africa – with a few exceptions such as the Ottoman Empire, China, and Japan – as equal sovereign states. From their perspective, the absence of a sovereign state in new-found lands indicated a terra nullius, subject-able to conquest. Thus, colonies were established. As for the Ottoman Empire, China, and Japan, unequal treaties (約) were used such as the 1842 Treaty of Nanking to form the capitulation system. Under this system, European states were given certain privileges and immunities in relation to religion, trade, and criminal jurisdiction even when present in the territory of another sovereign. Remember a “sovereign” possessing sovereign powers was understood to exercise supreme authority within that sovereign’s own territory. 

World War I (1918) – World War II (1939)

The formal horizontal expansion of the “International Community” was completed based on Article 1 of the 1919 Covenant of the League of Nations (Part I of the Peace Treaty of Versailles). The Permanent Court of International Justice was established in accordance to the Covenant of the League of Nations (1921 – 1946).

World War II (1945) – 1960

At the conclusion of WWII, two temporary military tribunals were established to prosecute individuals whom have committed war-crimes, crimes against peace and humanity under the name of PIL. Soon followed the development of Human Rights.

In 1947, the International Law Commission was established by the General Assembly to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification”. ILC has since contributed to the codification and progressive development of PIL through preparing drafts for numerous treaties.

1960 – 1990

The codification of  PIL inter alia Law of Treaties, Diplomacy, Law of the Sea, and Succession have been completed. With the independence of African States the traditional international law order faced challenges from the Third World. Sub-divisions of PIL such as International Environmental Law (IEL) began to develop.

Post 1990

With the end of the Cold War, the UN Security Council has recovered its original functions. New problems such as “terrorism” arose under PIL

 

Against Scholars in the Field of Politics and International Relations

Realists, institutionalists, or Structuralists or what have you quite often enjoy questioning the very existence of Public International Law from a political and IR perspective. Many are confused by this question, believing that it goes to the very fundamental inquiry of whether “law” that cannot be enforced is to be considered as “law.” However, this fallacious claim stems from their failure to understand that PIL is “normative and binding.” We shall continue this discussion in our advanced level studies.

 

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img_1852Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

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