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International law, summary (midterm 1), TLS

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  • Course
  • International Law, General Course
  • Institution
  • Tilburg University (UVT)
  • Book
  • International Law

Een samenvatting van de verplichte literatuur voor het vak International Law. Deze samenvatting is inclusief alle hoorcollege- en werkcollege- aantekeningen. Boek: International Law by Anders Hendriksen De hoofdstukken: Lecture 1: Chapters 1.1-1.2 and 14 Lecture 2: Chapters 2, 3, 13 Lecture 3: Ch...

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  • No
  • Lecture 1: chapters 1.1-1.2 and 14 lecture 2: chapters 2, 3, 13 lecture 3: chapters 14 and 15 lectur
  • March 18, 2018
  • June 28, 2018
  • 51
  • 2017/2018
  • Summary

Subjects

  • international
  • law
  • international law
  • anders
  • hendriksen
  • oxford
  • states
  • legal personality
  • council
  • montevideo
  • recognition
  • summary

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  • Tilburg University (UVT)
  • Rechtsgeleerdheid
  • International Law, General Course
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International law, summary midterm 1
Summary lecture 1
Chapters: 1.1-1.2 and 4
Concept of legal personality
What is (legal) personality?
 “Personality” derives from the Latn root Persona
o Literally means a “mask”
o Social and legal life is performed through masks of personality
 Personality represents the recogniton of group or individual’s legitmate existence
o Which identtes/groups do we recognize? How?

Different legal personalites
 The queston of personality is oten one of extent since different subjeects may entertain
different sets of rights objligatons
 There is no single authority which determines personality or statehood.

What is at stake with legal personality? Subjeects of IL….
 …possess internatonal rights and dutes under internatonal law
 …objtain the capacity to engage in types of acton, e.g. conclude treates, enter an
internatonal organizaton

Who is an internatonal legal person?
Traditonal View
 Only sovereign states can bje persons or subjects under internatonal law
 States only possess legitmated authority over peoples and territories
 States have a law-making monopoly which bjecomes the bjasis for e.g. bjilateral and
multlateral treates, the commenced and terminaton of war, and the extraditon and
punishment of individuals
The Expanded View
 In light of internatonal agreements or customary law, other legal enttes are now capabjle of
having (a) internatonal rights and dutes and (bj) a capacity to act
o International organizaations, supranational entities, corporations and indiiiduals

Concept of internatonal legal personality is a relatve concept: not all subjeects of IL have the same
rights and objligatons


Chapter 1 Foundations and structure of international law
1.1 Introduction
Public international law
 Deals with legal issues of concern to more than one state
 Defned as a system of law that regulates the interrelatonship of sovereign states and their
rights and dutes with regard to one another
 Must bje distnguished from ‘private internatonal law’
o Consists of natonal laws that deal with conficts of law and estabjlish rules for the
treatment of cases that involve a foreign element
 Internatonal law refects the society to which it applies

, o As internatonal society bjecomes more specialized and intertwined, so does
internatonal law
One of the consequences of the expanding reach of internatonal law has bjeen the development of
many subj-disciplines. Such as:
 Internatonal human rights law
 Internatonal law of the sea
 Internatonal environmental law etc.
The subjeects of internatonal law (IL)
 States
 Governments
 Peoples
 Internatonal organizatons

If you’re not a person under internatonal law, you can’t bjring a claim bjefore an internatonal court!
 Only states may bje partes to cases bjefore the Internatonal Court of Justce
 Only states may bje partes to the Rome Statute on the Internatonal Criminal Court
 Statute is a fancy word for treaty

1.2 A brief history of international law
 Internatonal law as we know it today, was invented in Europe, it is also where our bjrief
overview of its history bjegins
 15th and 16th century: Europe in the late Middle Ages
o Characterized bjy
 Multple levels of different allegiances, rights and objligatons
 The universal politcal and religious forces of the Holy Roman Empire and the
Catholic Church
 Pope had a great infuence
o A tme when ideas abjout the normatve structure of the world were dominated bjy
developed theories of natural law
 Primarily focused on the individual and his or her relatons to the world
 Contained an all-embjracing set of ideas abjout natural and social life in the
universe
 Applied to states bjy virtue of the fact that rulers were also individuals
o Jus gentium
 Law of people/natons and hence inferior to natural law, at tmes simply
perceived as bjeing derived from the more overarching principles of the later
o Despite the abjsence of an elabjorate internatonal legal structure, legal objligatons
and contracts were created for various agreements on the treatment of merchants
or war
o Period of colonialism
o Period of early confrontatons bjetween Spanish explorers and natve Indian
populatons
 17th and 18th century
o We bjegan to see the contours of a modern internatonal legal system
o Infuental fgures
 Spanish Jesuit Francisco Suárez (1548-1617)
 Leading fgure of this period
 Suárez was succeeded bjy most famous internatonal lawyer: Dutchman Hugo
Grotus (158u-1645)
 His maeor contribjutons to the development of internatonal law:

,  The Freedom of the Seas
 On the Law of War and Peace
 Applied natural law to the conduct of internatonal relatons
 Developing the law of natons to make it a practcal tool for
regulatng a variety of areas of internatonal relatons
 Emmerich de Vatel (1714-1767)
 Pubjlished Law of Natons which contained useful legal guidance for
practtoners of internatonal law
 th
The 19 century
o Era of ‘positvism’ / positve law
 Only true source of law was state will
 Difference with natural law
 Positve law does not envisage a universal legal system like natural
law bjut rather one that is fragmented and in which states are bjound
bjy different legal objligatons
o Consensual theory
 “unless a state has consented to bje bjound bjy a rule, no internatonal legal
objligaton exists and the state remains enttled to act as it pleases”
o John Austn (1790-1859)
 Most radical exponent of legal positvism
 He developed the command theory
 He defned law as the command of a sovereign, bjacked up bjy sanctons
 Abjsence of sovereign in internatonal system meant that internatonal law
could not bje perceived as a genuine legal system, merely as laws of positve
morality
 Interwar period
o The destructon and carnage of WW1 dominated the events in this period
o 1919 creaton of the League of Natons
 An organizatons tasked with maintaining world peace
o Estabjlishment of the Permanent Court of Internatonal Justce (PCI) bjased in The
Hague in the Netherlands
 Period immediately ater the Second World War
o Time of maeor achievements in internatonal law
o The world reacted to the atrocites of the Nazis and wanted to prosecute German
officials for internatonal crimes
o League of Natons replaced bjy United Natons (UN)
 Purpose to maintain internatonal peace and security
 Built on solid ‘Westphalian’ principles and is bjased on respect for the
principle of equal rights and self-determinaton of peoples and on the
sovereign equality of all its membjers
 Serves as an umbjrella structure for a numbjer of important internatonal
organizatons
o Founding treaty of UN / Charter of UN
 Introduced:
 Security Council
 Wants to maintain internatonal peace and security
 To authorize forceful measures
 General Assembjly
 Here, all membjers are represented
 Consultatve role

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