Introduction to International and European Union Law (RR116)
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Summary B1 Introduction International and European Union Law Erasmus Universiteit
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Introduction to International and European Union Law (RR116)
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Erasmus Universiteit Rotterdam (EUR)
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B1 Introduction to International and European Law: Samenvatting
2023
Door Aya Bahaya
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,International law
1 Foundations and structure of international law
IRAC method
- Issue: The first step is to identify the issue at hand; what is the problem? Or, what question is
the question asked? Reformulating the question may help you to understand exactly what the
legal situation in the question is, and thus what is expected of you. You have to explain the
entire situation, not just the question.
- Rule: Once you have defined the problem of the case/question, you can identify the rules that
might be applicable to solve this identified issue.
o Field of law: before describing the specific rules, it is useful to clarify for yourself
which field of law might be relevant for the issue you identified. An example of a
field of law is the laws on state responsibility or the use of force.
o Which source: The rule may consist of various elements, which you can differentiate
based on the sources of international and European Union law. Roughly, these
categories can be distinguished in which each source can be reflected:
Treaties
Firstly, rules may arise out of treaties, especially if states (or other subjects)
are party to it.
Customary international law
Case Law
Case law of international and European judicial bodies may contain rules of
public international law and European Union law that are not necessarily
codified in treaties. Be reminded that in this step, you explain case law which
has already been judged upon by an international court, tribunal or European
Court of Justice. You do not yet apply this case law to your own case at hand.
- Application: In the two steps prior, you identified the relevant facts of the case, and the
relevant law(s) for the case at hand. Now you bring both together, and based on both, come
with a legal solution to the case at hand. Remember to argue the law to your case (do not
argue the facts).
- Conclusion: Ensure to end your analysis with a concluding phrase, in which you provide an
answer to the issue you have identified in the first step and to the question being asked.
1.1 Introduction
International law is a system that regulates the relationships among sovereign States, and other
actors that are involved like international organizations. Nowadays it covers a lot of different issues,
since we interact internationally on so many levels.
International law is not comparable to national legal systems; it has no central body that creates laws
or a branch that enforces these laws. There is no mandatory legal procedure that applies to each and
every country.
1.2 A brief history of international law
Middle Ages:
Before the Middle Ages, the only thing that could be seen as international law was the ius naturale;
the natural reason. It was seen as values that were universal since they came with us naturally.
In the Middle Ages different communities (not states!) started interacting by creating obligations for
each other and working together. These interactions needed to be regulated. This is when laws around
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,the maritime networks for instance got created. Thus, next to the ius naturale, ius gentium, the law of
the people, started emerging around international law.
Colonialism:
When the era of colonialism emerged, Western European countries started colonizing native
populations. This was justified with the ius gentium.
17th and 18th century:
In the 17th and 18th century we saw the first emergence of modern international law. States became the
fundamental units of the world, due to the Peace of Westphalia. These states were included in an
orderly network of international law, which is the system that we uphold today.
19th century:
The concept of positivism was introduced: state will was the most important. This meant that states
have to give consent to be bound to international obligations.
World Wars:
Due to the First and Second World War the earlier version of United Nations (league of nations
1919) and International Court of Justice were created. These regulated for instance the
decolonization process. There was an emergence of multiple regional organizations such as the
European Union. This all was for the goal of coexistence. We wanted to avoid war and conflict.
1.3 The structures of international law
International law regulates states. It must add unto what national law is inadequate to do. There are
two interests of international law surrounding these states:
- The international law of coexistence, general or customary international law: this centers
around the horizontal relationship among States, and how to uphold peaceful coexistence
around this relationship. It contains laws around territory, war, and criteria for statehood.
These all have the goal of separating the power of sovereign states, so that we will not fight
over it. The content of general international law is often seen as vague.
- The international law of cooperation: vertical and transnational issues are being worked at
together. These are thus issues that are resolved internationally because national laws are
inadequate to do so. This is often done through treaties, which make it optional to states,
which connects with positivism. This does create the problem of consent being needed, and
how effective its achievements will be if a state does not want to cooperate.
1.4 The basis of international obligation
Are states bound to international obligations? This knows two theories:
- Natural theory: nature dictates certain behavior of states. They are thus bound to these
international laws.
- Positivism: international obligations need to be made with consent of states, therefore
upholding state sovereignty. They are thus not bound to international laws unless to desire to
be.
If a state is sovereign (positivism), it would seem they are not bound by international obligation
(natural). In theory this means that both theories cannot coexist.
In practice this is different. The sovereignty of states is in fact protected by international obligations,
in the same way a citizen’s rights are protected by enforcing that no one will break them. On top of
this states automatically give consent to international law just by the sheer fact that they part of this
society.
1.5 The relationship between international law and national law
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, International law asserts supremacy over national law. A state can often take their own view on how
to implement international laws, but it is implied that they will come above national laws. How a state
implements international laws, can be done in three ways:
- Monism: international and national law are both contained in one legal order. International
laws directly apply in states without further jurisdiction. They are self-executing norms.
- Dualism: international and national law are both separate legal orders. International laws only
apply in a state when they are transformed into national laws.
- Pluralism: a more complex, combination of above ways. This is most often applied in
practice.
Most countries implement customary international law directly into their national legal order. They
are self-executing norms. Treaties, on the other hand, do often not concern citizens directly, so they
need transformative laws.
Self-executing norms (eenieder verbindende voorschriften) have a couple of characteristics:
- Direct effect: they are directly applicable. It allows an individual to invoke an international
law provision before domestic courts or use the international law provision as a defense.
- Norms need to be:
o Clear
o Precise
o Clearly intended to create direct applicable rights
o Unconditional: there is no question about how it’s applied.
o Emerges from the general scheme of the treaty: if it comes from a treaty. If it
comes from customary law, this does not apply
- It does not address the legislator or individuals
1.6 The issue of enforcement of international law
International law does not have the same recourses national systems have; there is no police force or
mandatory judiciary system. There are several courts that try to be the one that enforces international
law, such as the ICJ and ICC. Nevertheless, states often need to take action themselves to get
something actually taken care off.
1.7 The alleged inadequacy of international law in the 21st century
There is criticism around the respect for sovereignty and need for consent from states for international
law. Critics state that these stand in the way of the effectiveness of international law. International law
must balance the concept of justice with stability and order. They will, however, often choose the
latter since this is their primary goal. This is called self-help.
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