We explain what public international law is, its principles and other characteristics. In addition, private international law.
What is public international law?
Public international law is the branch of law that deals with international relations between States and international subjects . It is the legal framework by which the international community is governed, in order to guarantee peace and the just resolution of conflicts that may arise from their mutual relations.
In this fundamental perspective it is distinguished from private international law. Unlike other branches of law, public international law deals with legal mediation between sovereign entities .
Consequently, it does not consist of a coercive legal system, as is the case with legal apparatus within each specific country. On the contrary, it is mainly coordinative, that is, it seeks to lead the conflict through regular, peaceful and fair channels.
Thus, it makes possible the construction of regulations accepted by all participating States and to which they voluntarily agree to submit. These norms could even have supra-constitutional status, as is the case with Fundamental Human Rights.
History of public international law
Since ancient times, there has been war between different nations and human civilizations, in their struggle to control resources or to expand their cultures and religions . However, in most of the conflicts in history there was some kind of minimum legal order.
It could be informal or based on custom, which governs “normal” behaviors in a confrontation and those considered abominable. In fact, appealing to these types of rules, often of religious origin, managed to sign peace between empires at war or at least agree on the terms of some form of honorable surrender.
The oldest treaty of this type comes from Mesopotamian antiquity , and involves the Lagash and Umma Chaldean cities around 3200 BC. C. This treaty would have allowed them to set their borders at the end of a war.
On the other hand, the first modern case of this type of international legal instances was that of the Alabama Claims , at the end of the American Secession War, which was tried by a court in Geneva.
However, as usual, there is a discrepancy in the authors regarding the specific origin of Public International Law. Some consider it as old as the human nations themselves, who agreed to the terms for trading or exchanging primitive goods.
On the contrary, other authors assume their formal start from the 16th or 17th century, at which time sovereign nations formally appeared to be related to the others in terms of legal equality, as happened in 1648 with the Treaties of Westphalia.
Sources of international public law
International public law has as its sources the diverse and varied treaties signed by States bilaterally or multilaterally , such as pacts, conventions, memoranda, joint declarations, etc., as well as the so-called international custom, recognized in practice by States and by the general principles of law .
To this must be added the legal documents emanating from international courts and multilateral legal organizations (such as the UN ) that serve as a mediator in local and regional conflicts, providing a legal framework of mutual understanding between the nations in dispute.
Subjects of public international law
The subjects of public international law are:
- National States , duly recognized by their peers and by the international community as such.
- International Mediation Organizations and international agreements, such as the United Nations Organization, the International Labor Organization, etc.
- The belligerent community and the national liberation movements, in certain cases in which they are recognized as political and non-criminal actors.
- The natural person , as a taxpayer of international law, receives obligations and rights from it.
Characteristics of public international law
Public international law is based on the agreement that relations between nations should be for mutual benefit, and that they are always preferable to war.
Such relations of cooperation , rivalry or exchange must therefore be governed by voluntary treaties to which all countries that subscribe them must submit, considering that said system is independent of who exercises their governments .
The instances of public international law, thus, are decentralized and minimally coercive, dynamic and endowed with certain relativity with respect to international legal duties, that is, they can always be negotiated and subject to political work.
Principles of public international law
The principles of public international law hold above all the right to the sovereignty of nations . This means that by agreeing with other countries or signing international treaties they are not sacrificing their legal autonomy and self-determination, but by agreeing on an international mediation space that allows mutual agreements to be reached.
For this reason, many authors question the legal nature of this branch of law, since, in principle, there is no international body from which international laws emanate and that can coerce States to abide by them, but they will be the result of the voluntary agreement of the nations.
Other fundamental precepts of Public International Law in contemporary times are:
- The “right” to war . Just as there are laws of peace, there are also laws that govern the acceptable in a situation of war, and that legitimize the use of armed force from one State against another. These conditions are three: in defense of national security itself, at the service of a multilateral mission of collective security or “peace force” by an international organization such as the United Nations, or when it is done at the service of some regional authority responsible for ensuring peace.
- The treatment of foreigners . The law that dictates respect for embassies, consulates and diplomatic representations of different types, that provide services to their nationals on foreign soil, and that may mediate in specific legal events regarding citizens of their nationality.
- The fundamental human rights . Above any other treaty, the agreement on the fundamental rights of the human being and the punishment of those who violate them is one of the most universally accepted and defended precepts of international peace organizations.
Private international right
The two main branches of international law, public and private, differ from each other in that they are interested in international law from different points of view. Among them there is a distinction similar to that within the jurisprudence between private law and public law .
Private international law deals with the legal relations of the populations of the different countries . For its part, public international law deals with relations between different countries and states, such as territorial conflicts or disputes between their respective sovereignty.