The Nature, History and Philosophy of Public International Law

THE NATURE, HISTORY AND PHILOSOPHY OF PUBLIC INTERNATIONAL LAW

1. Introduction

International law is divided into:

a) Private International Law (or the conflict of laws) and

b) Public International Law.

The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising issues as to the application of foreign law or the role of foreign courts.

Public International Law is not simply an adjunct of a legal order, but a separate system altogether:

Serbian Loans Case, PCIJ, Series A, No.14, pp. 41-42.

Wallace (p.2) defines the term Public International Law as:

“ … those rules and norms that regulate the conduct of states and other entities which at any time are recognised as being endowed with international personality, for example international organisations and, to a certain extent, individuals, in their relations with each other.”

What this definition reveals is that although states remain the primary subject of Public International Law, they are no longer its exclusive subjects. Tomuschat (pp. 838 - 840), in his commentary on the International Military Tribunal at Nuremberg and the later Tokyo trial argues:

“Nuremberg did away with the protective umbrella that state sovereignty provided perpetrators. The Statute of the IMT did not allow political leaders to shield behind their official functions any longer. Article 7 explicitly provided that the ‘official position of defendants, whether as Heads of State or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment.’ This proposition has found its way onto all the later statutes of international criminal courts and tribunals …The remarkable fact was that the screen between international Law and the individual, normally constituted by state sovereignty, was pierced … Today, individual criminal responsibility is the unchallenged cornerstone of the entire

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