Definition of Public International Law

Public International Law (IPR) is defined, based on what is exposed in this work, as the set of legal norms and principles that regulate relations between subjects with international legal personality, and which is divided into four main branches: a) Diplomatic law and consular; b) International Human Rights Law; c) International Humanitarian Law and d) International Criminal Law.

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Daniel Nino Angeles | Jul. 2022
Lawyer, Master in International Law

Currently, the DIP aims to achieve the purposes established in the Charter of the United Nations, such as the world peace through the peaceful settlement of disputes, cooperation between states and respect for human rights.

A first conceptual approximation allows sustaining the DIP as the set of norms, principles and standards that govern the relationships between the subjects of international right. With this conception, the criterion of defining the DIP is followed based on the subjects to which it is applicable. The conceptual construction has been configured along with the evolution and development of human societies, so that history, politics and

Branches of Public International Law

It can be affirmed that there are three main thematic aspects (or branches) that make up the DIP, and from them, a complicated regulatory framework and customary law that over the years introduces new content, institutions and mechanisms to the vast universe of the DIP. In this way it can be affirmed that the DIP includes:

A) diplomatic and consular relations. It is a set of conventional and formal legal norms, which are normally agreed in international treaties or bilateral agreements, regulate the formal aspects of the relations between the subjects of International Law, which allows the respectful and healthy conduct of their relations and at the same time the defense of their national interests beyond their borders and jurisdiction.

b) Human rights. In recent years, International Human Rights Law has been consolidated as a branch of the DIP, which seeks to establish supranational institutional mechanisms that allow the effective defense of human rights in each of the State. It is not about defending the interests of the member states of the global community, but about defending human dignity through international law.

To achieve its mission, International Human Rights Law is made up of international treaties on human rights, as well as quasi-jurisdictional bodies (of the universal system or regional systems) that issue advisory opinions, jurisprudence and non-binding sentences (in most cases) that are addressed to the States seeking to prevent, protect, remedy or repair the damage resulting from proven violations of human rights fundamental.

c) International Humanitarian Law. It is a branch of the DIP that regulates specific situations in armed conflicts, in order to protect those who do not participate in them, or those who have stopped participating in hostilities. It has been formalized mainly through the four Geneva Treaties signed in 1949 and of which most of the countries of the world are part.

D) International Criminal Law. It is the branch of the DIP that deals with classifying and punishing international crimes based on the own sources of international law, that is, those agreed upon by the community of state. He highlights the role played by the International Criminal Court (established in 1998 in the Rome Statute) which has been in operation since 2003 and which, as court of last resort deals with serious international crimes, such as genocide, war crimes and crimes against women humanity.

Historical background

It is feasible to find the origins of DIP in the roman law, in what became known as jus gentium, which was established as a special legal regime to regulate relations between those who had the citizenship and the members of the peoples called "barbarians", who were not subject to Roman law. In this way, the ius gentium appears as contrary to the ius civile, which was applicable only to Roman citizens.

Marcus Tullius Cicero, Titus Livy and the jurist Gaius began to use the nomenclature of jus gentium, at a time when national states did not exist, but which was useful to distinguish between the legal order applicable to Roman citizens and the one that regulated in To a certain extent, political and commercial relations, and in particular aspects such as war and slavery, with communities that were not under the domain Roman.

In this way it is noted that one of the most frequent denominations of the DIP is the law of peoples (jus gentium), however, it is rarely explained that the latter came from Roman law. Likewise, it is also observed that the domestic law or civil law which established the most important legal institutions in Rome, was a prior and necessary condition for the birth and subsequent improvement of the jus gentium, given that to a large extent the latter was an extension of internal Roman law, which at develop and consolidate, positively formalized the juridical relations of Rome with other communities policies.

The refinement of jus gentium, would give rise to the emergence centuries after the DIP as a consequent response to the evolution of human communities, whose members as social beings responded to the need to develop the rules of the jus gentium to facilitate their relations with other communities.

Trade was decisive for the preparation of the word under study, since Rome, by establishing increasingly complex commercial relationships, had the need to celebrate some agreements of an external nature to give protection to pilgrims and foreigners, for example, the treaties of Carthage at the end of the First and Second Wars Punic. Likewise, the creation in the Roman legal system of the figure of praetorian peregrinus, who had jurisdiction over foreigners, derived from the need to establish a legal mechanism to settle disputes between foreigners and Roman citizens.

The above description leads us to distinguish between the jus gentium conceived by Roman law and a modern definition of DIP. The answer would imply going through several centuries and delving into some philosophical content attributable to Heinrich Ahrens, Emer de Vattel or Foelix. However, for didactic purposes it is possible to point out that the main difference between both notions is that while in the first has as its center the person (recognized as a citizen by Roman law), the DIP was built from the evolution of the national state, which did not happen until the seventeenth century, in which the focus is not on the individual or person, but on the entity called condition.

Rise of the modern state

The nation-state is located within the spectrum of study of the theory of the State, it is a core concept to understand the normative and binding development of the DIP. In this way, it is perfectly valid to say that without the appearance of the modern state, the DIP would not have reached its stability as a legal and study discipline.

It is practically and theoretically impossible to understand DIP without understanding the emergence and appearance of the state national as an expression of the political and legal organization of a certain population settled in a territory. Without going beyond the scope of this definition, it will be appropriate to point out what Federico Seyde (Seyde, 2020, et al) pointed out in the sense that Nicholas Machiavelli and Thomas Hobbes were the theorists who supported the existence of the state, as an entity independent of the religion, morals and ethics, in such a way that the second of the authors mentioned doctrinally validated the concentration of political power in the monarch.

What we call the state can be approached from the most varied approaches, for example, in the era of absolutism it was believed, with some exceptions, that the end of the state was to fulfill the divine design, for those who defended the theories of the social contract, the reason for the existence of the state is summed up in an agreement of convenience to guarantee the security and freedom of the people, for the British conservatism headed by Burke, the state would be a phenomenon of the history whose function is to safeguard traditions and private property, for the followers of Marxism the state consists of an instrument institutionalized violence against the working class that prolongs the domination of one class over another, for anarchism, the state must disappear, and they could list multiple approaches.

The approach of Hans Kelsen stands out, for whom the State is a legal order of a particular kind, which “It manifests itself in a series of legal acts and poses a problem of imputation, since it is a question of determining why a state act is not imputed to its author, but to a subject located… behind it… the State as the subject of state acts is precisely the personification of a legal order and cannot be defined in any other way way” (Kelsen, 2019, p. 191).

Sovereignty in nation states

It is not omitted to point out that one of the most important qualities with which the national state has evolved is that of being sovereign, and for this, it is opportune to remember the theoretician who used this terminology for the first time, it is Jean Bodin, who stated: “The republic is the just government of many families and of what is common to them, with supreme authority”, that is to say, that this common government for the families had a quality and it was that of being supreme. Not in vain has it been pointed out that for Bodin the political power concentrated in a monarch is validated based on “ethical values, logical principles and legal arguments aimed at supporting the conception of the State as a sovereign entity” (Seyde, 2020, p. 208).

The above has been pointed out, since the concept of state sovereignty is of cardinal importance for the emergence of the DIP as it is currently known. It can be said that sovereignty is not a term of simple conceptual delimitation, but if it is possible to agree on something, it is that it is a quality, that of being supreme. In this sense, it can be validly affirmed that sovereignty is not public power in itself, nor is it the exercise of said power, but rather It deals with the quality that covers the authority of a State, which means that within it there is no equal or superior power (internal level), and that outside its borders (external level) it coexists with other entities that are equal and equal to it, that is, that are formally equivalent to it.

Emergence of Public International Law

It is valid to affirm that the DIP makes its formal appearance in the 17th century along with the national states. Hence, for Víctor Rojas, the first international DIP treaty, in which the sovereignty of the States was expressly recognized, was the Peace Treaty of Westphalia in 1648, which was only applicable to European powers under the principles of recognition of sovereignty and the right to war (Rojas, 2010, p. 16). Jeremy Bentham, an English philosopher, coined a definition for his time by saying that the DIP was the body of standards and legal rules applicable between sovereign states and other entities legally recognized as actors international. It is not overlooked to point out that authors can be found who indicate the appearance of the DIP from other events or moments historical, but it is pertinent to point out that there is consensus that the first formal manifestation took place in 1648 with the aforementioned treaty.

Jeremy Bentham's definition placed emphasis on sovereign states as the main actors in the DIP, and this shows the great evolution that the concept over time, since said philosopher only left open the possibility of including other subjects of the DIP when in his definition mentioned “other entities legally recognized as international actors”, but without specifying which ones. Today people, under certain circumstances, and international organizations are dynamic actors of the DIP.

The war as an international armed conflict promoted the development of the DIP, since the community The international community became aware of the potential risk and danger that the improvement of weapons. For this reason, and in a legal effort to prevent war and establish peace, the League of Nations was established the year after the war ended (1919), which, not having the support of Germany, the United States and the Soviet Union, was a failed attempt to establish the DIP, but a precedent of great importance for its compendium and subsequent formalization.

After the appearance of the League of Nations, various international legal instruments were signed, which in substantive terms were clear expressions of the DIP, such as the Geneva Convention of 1924, the Briand-Kellog Pact of August 27, 1928, signed by a large number of states and which was intended to prohibit war, until the signing of the United Nations Charter, signed on June 26, 1945, in San Francisco, California, United States, a document that entered into force in October of the same year, being the Statute of the International Court of Justice an integral part of the mentioned letter.

The Charter of the United Nations has the nature of a binding international treaty for the member states of the United Nations. Organization of the United Nations, an organization that was born into international political and legal life at the end of World War II World. The aforementioned Charter includes principles such as the equality sovereignty of States, international cooperation, equal rights, the prohibition of the use of force in international relations and respect for human rights, all of them provided for in Article 1 of the Charter of Nations United.

It is feasible to affirm that international treaties are the formal and most common expression of DIP, without undermining the great importance of other sources of international law recognized in Article 38, paragraph 1 of the Statute of the International Court of Justice. The foregoing affirmation finds support in that international treaties elevate to the rank of norm the agreements adopted in the negotiations of the subjects with legal personality international.

International legal personality

It is understood by personality international legal the quality of certain subjects of the DIP (states, organizations, people, etc.) to assume rights and obligations, that is, full responsibility of law in accordance with the rules and principles of the DIP itself.

Subjects of public international law

Currently, the subjects with international legal personality, and that therefore may be relevant to the DIP, in terms of their rights and obligations, are the following:

a) States (enjoy full international legal personality);
b) International organizations;
c) Individuals;
d) Peoples struggling for self-determination;
e) Liberation movements (they can be belligerent)
f) The Holy See-Vatican City;
g) Sovereign Military Order of Malta

As can be seen, the States enjoy full legal personality, and it can be considered that they are the typical subjects of the DIP, due to their On the other hand, other subjects such as international organizations, individuals and liberation movements have acquired international legal personality gradually or from the fulfillment of certain hypotheses of fact or assumptions legal. Another way in which one can distinguish between the subjects mentioned is that the states are the typical subjects of international law and the others are the atypical subjects.

conclusion

by way of conclusion, it can be stated that the conceptual construction of the DIP continues to develop, the complexity of international relations and the appearance of new subjects with international legal personality as well as the evolution of new matters such as space law, will give rise to the need to rethink from time to time the content and scope of the DIP, this will have to happen, with the inevitable consideration of the political, economic, social, technological and legal environment of the society.