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Summary Tree Case law and documentation - Cases and Materials Public International Law, ISBN: 9789462907423 Public International Law
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Essay Public International Law (RR314) | Cijfer: 7
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Week 1Foundation and structure of international law
Introduction
International law affects our daily lives. The past months topics such as covid-19 and the
Brexit show us that international law has a big impact on our daily lives. It can change a lot.
The basics of public international law
The emergence of international law
• Pre-Greek Civilisations:
e.g. before 2100 B.C. Treaty between Lagash and Umma of Mesopotamia settlement of
disputes through arbitration, solemn oath for observance)
• Ancient Greek and Roman times: origin of certain principles and customs
e.g. treatment of foreigners, arbitration for settling disputes, treaties on commerce, peace
agreements.
• Colonialism (15th century onwards): Spanish, French, British, Dutch role
(unsurprisingly many scholars of IL from these countries): acquisition of territories,
sovereignty, freedom of high seas etc.
• Catholic church: international institutions (e.g. first ad hoc court in 1474 – von
Hagenbach trial)
• End of 16th century: Pope’s gradual loss of power
Birth of modern international law; 1648 peace of Westphalia (vrede van Münster).
- 17th century: Birth of modern ‘international community’
- Why was the peace of Westphalia so important for the formation of international law?
-> the Dutch republic was acknowledged as a sovereign state. It was an agreement
between different countries.
19th century
• Positivism vs natural law: which one prevailed? -> positivism.
Positivism; follow the laws that are legislated in de books strict and the ones that are
established between states. International law is what written law is.
Natural law; we thrive certain rights and obligations even without necessarily having
rules in that field. -> based on Christian values.
• Emergence of formal international institutions: Int Telegraph Union (1865) and
Universal Postal Union (1874); Hague conferences (1899, 1907). The emergence of
formal international law got bigger during the 19th century, because at that time
States could say ‘we don’t agree to this law so it doesn’t count for us’ when they
were part of agreement.
20th en 21th century
• Interwar period: League of Nations (predecessor of the united nations)
• After the First and Second World Wars
• UN Charter; IOs; ICL (Nuremberg and Tokyo tribunals)
, • Decolonisation: Self-determination. People can decide over their own faith of
people. Self-determination was possible because the rules of international
law.
• Globalisation (economic; cultural) 1989… (fall of the berlin-wall)
It was possible for states to develop international law after fall of the
wall.
• Multiplication of actors
• Global governance
• 9/11 -> a lot has changed in the field of international law, terrorism.
• Populism
What are the main differences between national (domestic) and international law?
Domestic: There is a central authority that makes laws, whether with the population’s
consent or not, and enforces those rules, it’s vertical. There is a law making body, maybe a
parliament or a senate; and there is a police force and courts. (well, in the best case scenario
there is). In many ways it is vertical, from the top down.
International law: is the law between States. State A makes an agreement with State B. Its
horizontal. There is no central authority like a parliament or a senate that makes laws. So it is
the law that regulates how States interact with each other. If the Netherlands and Belgium
would like to make rules about trade for example. International law systems lack police
enforcement and there isn’t a judicial center.
The relationship between national and international law
Monism
- a single and coherent legal system
IL directly applicable in national legal system, it works immediately without legislation in the
national law. So international law has direct affect in national law after is has been ratified by
the state.
Dualism
- Two separate legal systems that operate independently
- National legislation adopted to give effect to IL, it has to go thru the national
parlement before it works in a country (UK). So if international law wants to have
affect, it has to be ratified by the state AND is has to adopted by parliament.
In the Netherlands, international law only takes place when its binding all persons.
Pluralism
- Relationship between the two systems is more complex and diverse
Structure
Two key notions that explain why we have international law
Coexistence and corporation. We live at the same time together in this world and to
corporate gives us benefits. Think of matters as trade, use of the sea, air travel international
crimes etc.
, Two key notions that explain how international law works
1. Sovereignty and 2. Consent
• States have supreme power over their territory and may not be subject to the
jurisdiction of other states
• Each state has 1 formal vote which counts equally
• States must consent to be bound by international rules
International law is not real law. There is no police, no actual court. International law is just
based on the consent between states. But these states will act in their best interests
regardless of the rules (jus cogen). Also international law cannot be enforced and it is
violated all the time because certain states behave in a way that is against the international
law, but again it cannot be enforced.
Why do states obey international law?
• Desire for order and predictability over chaos
James Brierly (1963): “the ultimate explanation of the binding force of all law is that man
(read: person), …in so far as he is a reasonable being, is to believe that order and not chaos is
the governing principle of the world in which he has to live”
• Consent and Obedience: Sovereign equality of states (reciprocity; social sanctions)
they agreed to certain international rules so why would they not obey these rules
if they agreed to them? System of ‘Pick and choose’
• Legitimacy: credibility, reputation – who would join US in a potential war against
Iran? Hardly any state would join US in the war.
• Enforcement mechanisms
• Retorsions (diplomatic) / Contracts: ‘Tit for Tat’ … Effectiveness?
• International courts
Regardless of the fact that there is no police in international law, there are other ways to
enforce international law. ->
• International organisations
• International courts and tribunals
• Counter-measures
Week 2
Sources of international law
The three most important (abc) sources of international law are included in article 38 of the
ICJ Statute, namely;
• a. international conventions/treaties, whether general or particular, …
• b. international custom, as evidence of a general practice accepted as law;
• c. the general principles of law recognized by civilized nations;
• (d.) … judicial decisions and the teachings of the most highly qualified
publicists …, as subsidiary means for the determination of rules of law.
a. International conventions/treaties
Vienna Convention on the Law of Treaties, 1969 (VCLT)
• Leading instrument on the law of treaties
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