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Lecture notes on Public International Law
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Notes on all lectures on the course International Public Law
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Public international law notesLecture 1: Introduction and history on public international law
Main info for the course
Exam: Open book
Choose 1 essay question 1 case study
And
1 from either of them
In total 3 questions
Course materials:
• G Hernández, International Law (2nd edition OUP, 2022)
• Sourcebook of treaties and other materials
• Casebook, compiled specifically for KU Leuven students.
• Key readings (academic articles on PDF), to introduce you to
wider conceptual issues and key debates (optional)
Ideally, come prepared for class by doing the reading in advance.
Schedule for the lectures
,Today’s lecture:
o A Brief History of International Law
o The Scope and Content of International Law
o A Definition of International Law
o The Function of International Law
A Brief History of International Law
o Modern international law begins with the 1648 Peace of Westphalia
Reason for the Eurocentrism of international law
o However, different communities and societies have interacted with each other
since ‘time immemorial’
o There is much to be said about international law outside the Western world
o Euro-centric international law today has roots in European expansion from
1492-1914
Intellectual currents in international law, pre-1500
o Aristotelian idea of kosmopolis permeating much mediaeval scholarship
Took inspiration from Sparta and others: they were interacting with the West
The ideas were about the tension between the legal rules that apply to all of
us and the sovereignty of states
Universal rationality that binds all humans
Or it is based on usages and practice (state sovereignty)
o Ideal of ‘one community’ embraced by the Christian Church, transformed into jus
naturale
Claim to supremacy: the law of the divine that people can’t derogate from
and binds us all (universality); doctrines of universality – the claims of it had
legal effects like the power of the Pope to refuse to grant you with a marriage
or divorce
Universality vs. sovereignty (can the church be involved in the public affairs)
o Jus Gentium—the law of peoples—marginalised during mediaeval epoch
o Yet murmurs of ‘modern’ international law in Italian city-States
Still aware that divine law isn’t universal
Intellectual currents in international law (1500-1648)
o Protestant Reformation struck discord in the unity of Western Europe
The catholic church was claiming universality
Rejecting the power of the Pope and the Catholic kings to tell us what to do
Claim of sovereignty: we decide in what we believe
o Challenged the authority of the Holy Roman Empire and the Catholic Church
o Protestant rulers began asserting sovereignty independent from Empire and
Church
o Series of religious wars culminating with the Peace of Westphalia, 1648
Culmination of the events in Europe (the tension between universality and
sovereignty)
Embodied 2 core principles
,o Cuius regioe ius religio (‘whose realm, his religion’): if you are the ruler of a
territory you are free to choose how your people will be practicing their religions
Modern international law, 1648-1815
o Consequences of Peace of Westphalia
o The sense of jus naturale weakened: rejected universality
o The sovereignty of each State was affirmed: this led to series of rulers
o The principle of non-interference in the internal affairs of a State was recognised
o A series of rules for States to relate to each other began to emerge
o Jus Gentium reborn?: the foundation for international law
Grotius, jus naturale and jus gentium
o Hugo Grotius (de Groot), based in Leiden
Articulated a number of principles regarding sovereignty
One of the founding fathers of international law
o Seminal book, De Jure Belliac Pacis – Of the laws of war and peace
The rules for war for states
Divide jus naturale from jus gentium: jus gentium took precedence in
international law
o International law portrayed as a combination of two distinct bodies, jus gentium
and jus naturale
o Jus naturale: eternal, universal laws that ‘existed within nature’; discovered
through human reason
o Jus gentium, for Grotius, purely a human creation, subject to change from time
to time, and variable from place to place.
o Taken up by Wolff ,Pufendorf ,Kant but rejected by Vattel, who focussed only on
relevance of jus gentium
rejection of universal claims and priority to the law that was created by people
– jus gentium. This shift was connected to the notion of consent. Rejection of
overarching morality and principles that allow for the interference in state
affairs
Characteristics of the jus gentium
o Based on the sovereign equality of States
o A voluntary system based on consent to obligation, non-interference, horizontality
o Rejection of natural justice and other prescriptive principles (Emer de Vattel)
o Yet facilitated colonialism and the mission civilisatrice in the 18th and 19th
centuries
o Gave rise to international legal positivism
Dominance of positivism
o Drawn from natural sciences
o Decisive rejection of natural law
o International law based on sovereign will of States alone
, o Consent to obligation: the states need to consent to an obligation, so that it
becomes binding on them
o Freedom from non-interference from other States
o Gave rise to first international institutions
o International law as autonomous professional discipline
The Concert of Europe, 1815-1914
o Outcome of Napoleonic wars
Congress of Vienna: peace treaty
o Although sovereign equality was respected, ‘Great Powers’ were given special
privileges for maintenance of the system (inc. intervention)
Concert of Europe: Great Britain, France, Austria, Prussia and Russia
dominated to the exclusion of all others
When acting unanimously for situations that threaten to disturb the peace and
security in Europe (a premature system of collective self-defense)
o Non-institutional, early ‘successes’
o Waned over time
Colonialism and Empire
o European colonalism: dates from 1492 or earlier
o International law as resistance: abolsihing the slave trade
o International law as complicit:
• Terra nullius and European land claims: land that belong to no one: the doctrine
of discovery “me first”: if the people at a territory can’t govern themselves, it is no
one’s land and whoever gets there first can take it
• ‘freedom of the seas’ in the interests of trade
• Justified treatment of indigenous populations
o Berlin Conference 1884-1885 and ‘Scramble for Africa’: mission civilisatrice and
conquest
o King Leopold and the Belgian Congo
World War I and the League
o Increased multilateralism after 1914
o Foundation of the League of Nations, first ‘global’ international organisation
o Council dominated by Great Powers: like the UNSC, but there was veto power
for all the MSs that got elected in it (not only the permanent members)
o Mandate system
o Focus on peace & security, but also on technical and institutional co-operation
o Collapsed after 1930s rise of Hitler and Mussolini; non-participation of the United
States: but still proved that an universal IO can be created
World War II and the United Nations
o Collapse of the League
o 1945 San Francisco Conference: last moment of legal innovation in the
multilateral space
o Institutional evolution,with similar organs
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