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Public international law summary
WEEK 1: THE NATURE AND STRUCTURE OF INTERNATIONAL LAW
International law = the relationship between nations/states. A system of law that regulates
the interrelationship of sovereign states and their rights and duties with regard to one
another.
Examples: Covid-19, BREXIT, international post, international air travel, reduction of
roaming charges in EU.
Topics:
Foundations and structure of international law
Sources
Subjects
Jurisdiction and immunity (jurisdiction = courts. the territory of a state when sth
happens. Who has the authority to do sth?) (immunity = persons. Respect the immunity of
other states. If there is a Belgium ambassador in the Netherlands, he has immunity from
the Netherlands. He can’t be arrested for it)
State responsibility (enforcement)
International Dispute Settlement (state don’t take their responsibility, what do we do
then?)
Use of force (maintain peace and security)
Understand the history of the development of international law
o Pre-Greek civilizations:
- E.g. 2100 B.C.: Treaty between Lagash and Umma of Mesopotamia. Settlement of
disputes through arbitration. Solemn oath for observance.
o 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.
o Colonialism (15th century onwards): Spanish, French, British, Dutch etc. role: acquisition
(= expansion) of territories, sovereignty, freedom of high seas etc.
o Catholic church: international institutions
- E.g. first ad hoc court in 1474 – von Hagenbach trial (= first international criminal trial)
o End of 16th century: Pope’s (catholic church) gradual loss of power
o 17th century: Birth of modern ‘international community’ (aka international law). Peace of
Westphalia (1648):
- Consolidation of nation states in Europe
- State becomes an unquestionable source of authority (there is a person that can speak
on behalf of the state). They become a subject of international law and can engage in
agreements with other states; relations between states.
- Reduction powers of religion (the church doesn’t speak on behalf of the state anymore)
o 19th century: positivism vs natural law
Positivism = international law is what the written rules are and what agreements exist
, between states. Auguste Comte. Prevailed over natural law, now still used. Regarding
international law: a state is only bound to rules it has agreed to.
Natural law = we derive certain rights and obligations even without necessarily having
rules in that field. Associated with Christian universalism/values: can be derived from the
divine power of God.
- Emergence of formal international institutions: Int Telegraph Union (1865) and
Universal Postal Union (1874); Hague conferences (1899, 1907). The international
institutions set up rules of international law in writing.
o 20th to 21st century:
- Interwar period (after WWI): League of Nations (basically the predecessor of UN). Rules
have formed e.g. their states can’t use force against each other.
- After the First and Second World Wars
UN Charter; IOs; ICL (Nuremberg and Tokyo tribunals: to deal with crimes committed
by primarily the Nazi regime and Japan). If an individual commits international crime (e.g.
war crimes or crimes against humanity), international law can apply directly to those
people and they can be convicted directly from the sources of international law.
International law started prohibiting certain acts, including those from individuals.
Creation of multilateralism and international organisations.
- Decolonisation: Self-determination (= people themselves can decide about the fate of
their land and their people. Colonies can become states)
- Globalisation (economic; cultural) 1989…
Multiplication of actors (e.g. fall of the berlin wall and the actions of the US and
Russia)
Global governance (all states sit together to regulate issues related to human rights
etc.)
- 9/11 (rise of terrorism causes new developments)
- Populism (brings back nationalism and attacks international law and their ideas)
Understand the structure and nature of international law
Why does international law exist?
Coexistence: need between states to coexist. Multiple states have the same interests.
Can’t do it on their own, for example climate change. Topics:
Prohibition on the use of force. We need to exist together.
Protection of the environment (climate change)
Treatment of ambassadors
Use of the sea. Coexistence is needed so people can travel to other places overseas.
Air travel
Creation of states
Cooperation: states cooperate to see the benefits. E.g. transport tulips from the
Netherlands in exchange for mango’s from somewhere else. That’s not an issue of
coexistence because people can live without tulips and mangos. Topics:
Trade
Human rights. International law cares how human rights are treated in a given territory
even though it’s about individuals of a state, which is more about national law.
, International crimes. International law should have certain ideals and values and
therefore they no longer regulate relationships just between states but also regulate
what should happen with human rights and international crimes.
Some coexistence topics can be about cooperation too, e.g. climate change: we want to do
better (cooperation) but if that doesn’t work it becomes a bigger problem (coexistence).
International law is also about controlling States and other international actors.
Two key notions that explain how international law works
1. Sovereignty: sovereign equality of states
- States have supreme power over their territory and may not be subject to the
jurisdiction of other states (no other state can tell another state what to do. You’re
independent in your own country)
- Each state has 1 formal vote which counts equally
2. Consent
- States must consent to be bound by international rules (e.g. in politics there is
inequality in votes but it is regulated. The states have agreed to do so, there’s consent).
States are only bound by rules to which they have consented/agreed to. (For example,
security council. States have agreed/consented on setting this mechanism up in
international law)
Critique
International law /= law (meaning: international law isn’t law)
There is no police, constitution or mandatory court. There is only a court if there is
consent. So people think:
International law can’t be enforced
States will act in their best interests regardless of the rules
International law is just a collection of principles/values
international law is ineffective because it is violated all the time
So why do states obey international law (most of the time)?
Desire for order and predictability over chaos. States have set up rules that would avoid
chaos and would create a sense of predictability. All states want to make sure that
they’re not surprised by the neighboring or other type of states.
Consent and obedience. Sovereign equality of states (reciprocity; social sanctions)
Legitimacy. Credibility, reputation – who would join US in a potential war against Iran?
Enforcement mechanisms. Courts where states can be brought for failure to observe
international law. Ways to reply to the same or similar threat. Retorsions (diplomatic) /
Contracts: ‘Tit for Tat’. If they treat a diplomat one way in a given country, they may also
treat yours in your country the same way or even worse. There’s some sort of contract
that exists in a (un)written form
Enforcement of international law
International organisations. Can adopt sanctions against the given country. E.g. the EU
has given sanctions to Russia in relation to Crimea.
International courts and tribunals. Can relate to interstate disputes but also to individual
criminal responsibility. E.g. international criminal court in the Hague. If you’re a leader of
, an army and commit war crimes, not only your state is responsible for that but you may
also face individual criminal responsibility from one of the international hybrid courts.
Countermeasures. Can be used like sanctions against a state.
Be able to explain in what respects international law is different from national law
Domestic/national law regulates the relationship between the state and citizens/nationals.
State can restrict the rights of the nationals.
Citizens can interact with one another (like marriage or contract).
There is a central authority in the state that makes laws, whether with the population’s
consent or not, and enforces those rules. There is a law-making body, maybe a
parliament or a senate; and there is a police force and courts. In many ways it is vertical.
In the Netherlands: trias politica = separation of powers. Law-making/legislative, executive,
judicial
International law = law between states. Regulates the relationship between states, as equals
amongst one another. Treaties are laws, which are made by states.
There is no central authority like a parliament or senate that makes laws. So it is the law
(treaties) that regulates how States interact with each other. Doesn’t have a parliament,
police force or authority. It works on a horizontal level instead of a vertical level like with
national law.
States have different consequences when international law isn’t respected.
No enforcement mechanism. There is a court in The Hague, Asian court, etc. but they aren’t
the same as national courts. It doesn’t have meaning, if there’s no consent. States can
mostly do what they want, which is different from national law.
International law is about the relations between countries/nations. Domestic/National law is
about the rules that apply within a country.
Understand the difference between monist and dualist systems
Monism: once two states agree to certain rules in international law, it is expected that they
are automatically applicable in the national law.
International and national law are a single and coherent legal system
International law directly applicable in national legal system (a national institution can’t
use any excuse based on national law or policy to not imply international law).
Doesn’t always happen, purely monist system is rare.
International law prevails over national law.
E.g. the Netherlands is a moderately monist state. A treaty can be automatically enforced in
the Netherlands. Art. 93 Dutch Constitution: International law needs to be binding for all
people and to be published. Art. 94: If national law conflicts with international law, it shall
not be applicable = international law above national law.
Dualism: international law and national law are considered separate. International law isn’t
incorporated automatically in national law.
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