Section One: The Concept of Public International Law

In this section, we will study the definition of public international law (first), then the
nature of public international law and the basis of its binding force (second), and
finally the relationship between public international law and domestic law (third).

First: Definition of Public International Law

Many doctrinal definitions of public international law have attempted to encompass

the elements contained in the concept of public international law, and as this field has
evolved, definitions have emerged that align with this development. These definitions
connect international legal entities through international transactions, distinguishing
them from public international law rules.

A. Doctrinal Definition

The definition of public international law has been studied from various perspectives.
The classical perspective defines it as "a set of legal rules that govern the relations
between states," meaning that this law concerns only the rights and obligations of
states and the disputes that arise between them, with no recognition of any
international legal entities beyond states. On the other hand, the subjective perspective
focuses on the individual as the sole subject of international law, viewing the legal
personality of states as merely a presumption without real existence. Thus, addressing
states in their relations essentially means addressing individuals, as they are the only
ones who possess true will.

The modern perspective includes three schools of thought: The first argues that the
individual is the only subject of international law, denying that states have legal
personality since they do not possess their own will like individuals. The second view
maintains that the state is the principal subject of international law, alongside other
international legal entities. The third recognizes both states, international
organizations, and individuals as having international legal personality, though
individuals have a more modest place.

It is noted that international law is no longer confined to the subjects addressed by

classical thought. Moreover, contemporary international law does not limit the
enjoyment of international legal personality to states alone but also recognizes it for
international organizations, groups, and sometimes individuals. Therefore, public
international law can be defined as: "A set of binding legal rules that govern the
relationships between international legal entities—states and international
organizations—specifying their rights and obligations, and delineating the
relationships that may arise between these entities and individuals."

B. Distinguishing Public International Law from Other International

Transactions
We distinguish between public international law and international ethics, which is a
set of supreme principles imposed by global conscience on state behavior. The
distinction can be made through the element of sanction; a violation of international
ethics does not entail any penalty, whereas a breach of public international law rules
results in international responsibility.

International courtesies involve a state performing an act not required by international

law or ethics, or refraining from an act not prohibited by these rules. The distinction
between international ethics and public international law can be made through the
element of sanction, as a violation of international ethics does not result in any
penalty, unlike the breach of public international law rules, which leads to
international responsibility.

Natural law is defined as: "A set of just and correct rules derived from nature, human
reason, and inherent human rights." The difference between public international law
and natural law is that the latter represents a theoretical legal conception based on
justice and higher ideals, while public international law is positive law subject to
application.

Second: The Nature of Public International Law and the Basis of Its Binding
Force

Some scholars argue that the rules of public international law do not have legal status,
basing this on comparisons with national law. Another view holds that the rules of
public international law are indeed legal rules.

Regarding the basis of obligations in public international law, the volitional school
links it to the will of states or the collective will of states, while the objective school
sees this basis as related to external factors not connected to the will of states.

A. Nature of Public International Law

We will present here the perspective that denies the legal nature of public
international law rules (1), and then the perspective that supports the legal nature of
public international law rules (2).

1. The Perspective Denying the Legal Nature of Public International Law Rules

Proponents of this perspective argue that for rules to be truly legal, they must be
issued by a legislative authority, enforced by an executive authority, include a penalty
for violations, and have a judicial authority to apply the legal rules to disputes arising
between those subject to these rules. According to this view, international law rules
are not legal rules due to the lack of such authorities in the international community.
This view has been criticized by most international law scholars, who argue that it is
not prudent to judge the nature of international law by comparing its rules to the
characteristics required for domestic legal rules. Instead, it is necessary to consider the
nature of the international community itself and recognize that these rules regulate
relations between sovereign states with equal status.

1. The Perspective Supporting the Legal Nature of Public International Law Rules

Proponents of this perspective argue that the existence of law is independent of the
legislative authority that created it. Reality confirms the existence of legal rules before
the existence of a legislator, and these rules often derive from international customs.
Among the arguments supporting this view are:

• Denying the legal nature of public international law rules on the grounds that they are
based on the consent of the parties involved, and thus considered non-binding, can be
countered by noting that consent is also present in national law rules issued by legislative
authority, as parliamentary approval of any legislation reflects the approval of the people.

B. Basis of Obligation in Public International Law Rules

We will explore the opinions on the basis of obligation in public international law
rules according to the volitional school (1), and then according to the objective school
(2).

1. The Volitional School

Proponents of this school rely on the will of states as the basis for obligations under
public international law. Several theories have emerged in this context, including the
theory of self-restraint, the theory of common will, and the theory of "contract as law
of the parties."

1. The Objective School

This school views the basis of obligation in public international law as independent of
the will of states. Several theories have emerged, including the theory of power, the
theory of interest, the theory of social solidarity ("French school"), and the theory of
hierarchical progression of legal rules ("Austrian school").

Third: The Relationship Between Public International Law and Domestic Law

The relationship between public international law and domestic law will be examined
through the theory of dualism (1), and then the theory of monism (2).

1. The Theory of Dualism

Proponents of this theory, including "Trippel, Strop, Anzilotti," argue that
international law and domestic law cannot be merged into a single legal system due to
reasons such as the different sources of domestic law compared to international law.
Domestic law is issued by an authority superior to the will of those subject to it, while
international law is based on agreements between states without a higher authority.

Adopting this theory results in several effects, including the notion that domestic law
rules are not considered legal rules in the international domain, and vice versa.

1. The Theory of Monism

Proponents of this theory, including "Digi, Sell, Kelsen, Fardous," argue that
international law rules and domestic law rules are part of a single legal system,
forming an indivisible whole. This implies that international treaties become part of
domestic law and are considered sources of it.

A question arises regarding which should take precedence: international law or

domestic law. The first view suggests that domestic law takes precedence in case of
conflict, leading to the denial of the binding nature of international law rules and even
questioning the existence of international law itself. The majority view, however,
holds that international law rules have precedence over domestic law rules.