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INTRODUCTION TO PUBLIC INTERNATIONAL LAW
Prof. Franscesca Ragno
INTRODUCTION CLASS 19/02/24 – 1
First part – 32 hours of lectures
historical evolution and current features of the international community from a legal
perspective
the subjects of the international legal system
the sources; customary law, treaties, principles, and other sources
jus cogens and relationship between sources of international law
the application of international norms within a country
the law of state responsibility
Second part – 14 hours of lectures
1. the prohibition of the treat or use of force; historical roots and scope of the
prohibition
2. individual and collective self-defense
3. preventive and anticipatory self-defense
4. the UN collective security system
5. humanitarian intervention
6. the use of force against non-state actors
7. IHL; introduction and key concepts
Three mid-term written tests
1. March 7th
2. Match 27th
3. May 23rd
à Final oral exam
Extra essay for BAES
Two handbooks, preference for Klabbers
à not everything will be addressed
à reference to addressed topics each week
Wrap-up of the key concepts (25) each week
à answer these for the final exam
à good midterms ‘substitute’ exam
Password virtuale = peace
1
, Cato Sluyts
https://www.youtube.com/watch?v=-zM3P6n6X5A
The ICJ ordered Israel to take all measures within its power to prevent genocidal acts,
including preventing and punishing incitement to genocide, adopting effective measures to
enable the provision of urgently needed basic services and humanitarian assistance to
address the adverse conditions of life faced by Palestinians in the Gaza Strip, and preserving
evidence of possible crimes committed in Gaza.
International law can be framed as a discourse based around crisis, for crisis, and in crisis
International law provides a forum which is particularly important when international
politics do not provide answers
Public international law
Common law of humanity existing despite of the world’s political division in multiple states
¯
Rules that have emerged to regulate the relations within the society of states
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States are a complex of entities that have the characteristic of not being legally superior to
one another à “Civitates superiorem non recognescentes”
= superior societies are not recognized
¯
“What international law tries to do is to define or delimit the respective spheres within each
of the sates into which the world is divided for political purposes is entitles to exercise its
authority” - James Bierly à “Ubi societas ibi ius”
= If there is a society there will be law
Every social group has common legal rules, and every legal rule pursues a social value
¯
Also international law pursues social values
¯
Human rights, efficient economies, clean environment
Article 1 of the UN charter:
The organization has the purpose to “be a center for harmonizing the actions of nations in
the attainment of common end”
¯
Such as international peace and security, friendly relations among nations, and cooperation
¯
Utopian inspirational face of the law
2
, Cato Sluyts
“The real problem seems always to be less about whether there should be "peace",
"security" or "human rights" than about how to resolve interpretative controversies over or
conflicts between such notions that emerge when defending or attacking particular policies.
There is no disagreement about the objective of peace in the Middle East between Israel
and the Palestinian people. But if enquired what "peace" might mean for them, the
protagonists would immediately give mutually exclusive answers”
To enquire about the objectives of international law is to study the political preferences of
international actors - what it is that they wish to attain by international law.
The law is instrumental, but what it is an instrument for cannot be fixed outside the political
process of which it is an inextricable part
It is necessary to examine legal norms not as an abstract and almost metaphysical
crystallization of metahistorical interests, but as the landing point of specific interests of
specific entities, in a given historical situation
Rules do not emerge from mars, but emerge from a particular historical situation and a
particular dynamic between political actors
International law as politics in disguise
International law as a continuous normative process constituted by the succession of
normative decisions of the prevailing forces of the international community
¯
International law is not a predefined set of rules
New Haven School
Antonio Cassese (1937 -2011)
International law is a social construct, pushes social values, and cannot be identified or
interpreted without looking at the political influence
Legal quality of international law
“Law consists of rules issued by a sovereign” - John Austin
¯
Rules are defined as commands, coercive orders, or wishes backed by the threat of imposing
an evil in the form of a sanction in the case of non-compliance with the wish
International laws are set or imposed by general opinion and sentiment, and are thus not
real laws, but only ‘styled a law or rule by analogical extension of the term’
¯
Cannot truly bind sovereigns or national societies
3
, Cato Sluyts
¯
There is not an international government that operates to enforce international law as a
national enforced domestic law
From the international law perspective, countermeasures (sanctions), are not fully
legitimate (China’s view on use of sanctions)
Basic characteristics of law are
Authority
Compulsive character
International law as law...
“It binds sovereign states and is reasonably effective despite mostly decentralized and non-
coercive enforcement, international law and municipal law are sufficiently analogous in
function and content to fall under the same concept” – H.L.A. Hart
It’s just a different form of law, which works in a decentralized system and not centralized
like a national system
... but not a legal system
International law does not encompasses legislative, executive, and judicative structures
which are able to perform the same functions as the legal order of a nation state
Unlike in the domestic systems, in the international legal order the functions of law-making,
law determination and law enforcement are not exercised in institutionally organized and
superordinate terms with respect to the members of the community
No common authority existing above the authority of states
This has been challenged: we should depart from national legal orders in understanding
international law
Emergence of international law as a set of rules governing the relations between the
subjects of the international community can be traced back to the birth of modern States
Treaties of 1648 in Osnabrück and Münster (known as the Peace of Westphalia), which
ended the Thirty Years' War (1618-1648): a religious conflict that evolved into a struggle
between France and the Habsburgs
Fragmentation of the Holy Roman Empire and inauguration of a new international order of
the international community: a pluralistic system in which states recognize each other as
such and only as such, denying external powers (of temporal or spiritual character)
¯
4
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