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Uitgebreide samenvatting van het boek International Law
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International law – Chapter: 1,2,3,4,5,7,12,13 worden samengevat in dit document. Het tentamen heb ik in 1x gehaald.
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Samenvatting UU Public International Law (2020-2021)
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Samenvatting International Law, ISBN: 9780198828723 Public International Law
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summary Public International Law UU year 1
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International law – Chapter: 1,2,3,4,5,7,12,13International law is defined as the system of law that regulates
the interrelationship of sovereign states and their rights and
duties to one another. Other actors of international law are
international organizations and individuals. International law
remains a system of law that is very different from the national
legal systems most lawyers are familiar with. There is neither a
legislative nor an executive branch in the international legal
system. In general, international law remains a decentralized
legal system in which it is primarily up to the legal subjects
themselves to create, interpret and enforce the law.
Only when an issue is of interest to more than one national
sovereign will international law enter the picture. The scope of
international law is thereby determined by the inadequacy of
national law. The content of international law, the concrete
answers to the questions that cannot be answered in national
law, must be found in international law.
The two ways in which an issue becomes of interest to more
than one state defines the two substantive structures of
international law. I) the first is where two or more states may
have colliding interests in the substance of the issue. II) The
second way and issue becomes of interest to more than one
state is when the involved states have agreed in a treaty to turn
the issue into one of an international character. In practice, a
matter may become an issue of international law either due to
its content (the international law of coexistence) or its form (the
international law of cooperation).
The international law of coexistence contains the legal
answers to questions that are inherently of interest to more than
one state and required to separate the powers of the sovereign
states and thereby uphold peaceful coexistence. As a legal
structure the international law of coexistence is primarily
horizontal in the sense that it is mainly concerned with the
,manner in which sovereign states interact with/between each
other. It is also important to note that the international law of
coexistence is similarly not concerned with binding states closer
together in some sort of international ‘community’. It merely
seeks to ensure that states can pursue their different and
separate interests in a way that respects the sovereignty and
rights of other states. Its law is relatively stable and not subject
to much change.
The international law of cooperation finds the legal answers
to issues that are not inherently of interest to two or more states
but which have nevertheless been turned into matters of
international concern through the adoption of a treaty. The
reason why the issues are of an international character is
because treaties are international agreements governed by
international law. As an international legal structure, the
international law of cooperation is much ‘younger’ than the
international law of coexistence. Unlike the international law of
coexistence, the international law of cooperation is optional in
the sense that states decide for themselves if they want to turn
a matter dealt by national law into a matter of international law.
The existence of a plurality of sovereign states justifies the
binding character of international law. It is not a matter of
choosing between upholding either state sovereignty or
international legal obligations, but rather of perceiving
international obligations as a logical consequence of
sovereignty.
The relationship between international law and national law.
I) first of all, international law asserts its own supremacy
over national law. A state cannot justify a breach of its
international legal obligations by arguing that
compliance would be at variance with its national law.
International law is not generally preoccupied with how
a state lives up to its international obligations and it
, usually leaves it to each state to determine how it will
implement its international commitments.
II) II) a second point relates to the manner in which
international law is applied in national legal systems by
the legislature and national courts. There are two
different approaches: monism and dualism. Monism
holds that international law and national law form a
single legal order or a set of mutually intertwined legal
orders that are presumed to be coherent. The monist
approach therefore holds that international law can be
applied directly in the national legal system of states
and that the international norm prevails in the case of
conflict. Hans Kelsen argued that international law and
national law form a single legal system because they
both derive their validity from the same ultimate source;
the Grundnorm. Dualism holds that international law and
national law are two separate legal systems that operate
independently. Following a dualistic approach, neither of
the two legal systems creates rules for the other, and if
international law is applied domestically it is because it
is ‘translated’ into the national legal system, through the
adoption of national legislation.
In practice, neither monism nor dualism can explain the many
ways in which international law is applied by national
legislatures and courts. It turned to pluralism. The extent to
which international law is integrated into national law systems
depends on the constitutional approach of the state is question.
National courts are more willing to apply norms derived from
customary international law than treaty-based norms.
The international legal society has its own set of rules. In
practice, sources of international law are the argumentative
tools available to the international lawyer.
Article 38 ICJ Statute: sources of international law:
, 1. International conventions
2. International custom
3. The general principles
4. Judicial decisions and doctrine
Although article 38 is purely directed to the Court, it is
considered of general relevance. Article 38 distinguishes
between primary and secondary sources of law. The first three
sources are law creating because they create rights and
obligations. The latter two are law identifying since they merely
apply or clarify the content of existing law.
Conventions (treaties) as a legal source is the most direct way
for states to create rights and obligations under international law
and it is the only instrument available to two or more states that
want to enter into a formal legal relationship. In treaty law
consent is decisive. The effect of a treaty is expressed in the
principle pacta sunt servanda according to which states are
bound to honour their treaty-based obligations. A treaty
concluded by two states – a bilateral treaty – often governs a
particular issue of mutual interest. Treaties between larger
groups of states – multilateral treaties – often have general
application and possess law-making features.
Custom as a source of international law arises when a particular
way of behaving is:
1) followed as a general practice among states (objective
element) and
2) accepted by those states as legally binding. (subjective
element)
A customary rule binds all states, including the state that has
not taken part in the formation of the practice. Besides
customary law can also arise between a limited set of states.
State practice (the objective element) becomes legally binding
when it must be ‘the way things are done’. In most cases
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