De volledige aantekeningen en uitwerkingen van de lessen van internationaal en Europees recht. Deze zijn uitgebreid, compleet, en gebruikt ter voorbereiding van het tentamen.
Week 11 - algemeen / in general
This week will be conducted completely in English, as knowledge and use of this language is
one of the end terms of the Bachelor Dutch Law. All the ‘casus’ meetings, most of the
knowledge clips, the discussions in class, and the assignments will be done in English.
‘Casus’: Even though the situation Lisa found herself improves somewhat - she
remains incarcerated. Moreover, the action of her colleagues and herself, together
with the subsequent response of the United Kingdom (UK) created bad blood
between the UK and the Netherlands. After several more incidents the situation even
threatens to escalate.
Bijeenkomst 10.1
The situation eventually escalates in such a way that the UK is threatening the
Netherlands with the use of force. The Netherlands is of the opinion that threatening
with the use of force is not allowed under public international law. The Netherlands is
also wondering under what circumstances the UK can live up to its threat, i.e. when
the UK can actually use force in international relations. Furthermore, the Netherlands
is wondering how the UK’s membership of the United Nations Security Council can be
an influence in this affair. Lastly, the question arises who in the Netherlands is
qualified to take the decision to actually use force and whether it makes a difference
where the attack takes place (i.e. in its own territory or abroad) and what the role of
the Dutch Parliament is in such a matter.
Subjects: use of force
Preparation: watch the knowledge clip on use of force, read the relevant chapter of
Hernández.
In assignments you can find the assignment for the written pleading that you will have
to deliver during meeting 10.2
Introduce yourself before the pleading and make sure they understand what youre doing
and why you’re doing it. (de representative of the Netherlands ‘we’ represente) its 9
minutes, make sure all three of you have spoken in the 9 minutes bc she stops it at 9
What is the use of force: in general the goal is to not use force between states: but there are
2 exceptions:
1. Collective security
2. Self defence
, Art. 2 (4) UN charter: the pact that was called in it? The camal brion pact (?)
When you use of force between international states: nicaragua case: ‘the prohibition of use
of force is customary law’: its been a huge influence for the international law: always use
this: why? Because its been used as a definition: its not just armed forces its also minds or
direction of control over a violent operation.
Elements of 2 (4): criteria:
1. International relations, why is that important? It needs to be about force wich is used
against another state and not in your own territory (it has to go against another
state)
2. Threat or use of force
3. Against the integrity or political independence of any state: p 351: there is a case:
why is the act by the uk still seen as use of force even tho its prohibited? They did
that operation without permission in the international waters, the ICJ says that its
still something wich can be seen as a use of force against the other state
4. (use of force)
exceptions;
1. self-defence Art. 51: the country can defend herself against force: case caroline
- why is the caroline case important? (self-defence, Preemptive self-defence and
Anticipatory self-defence)
- ICJ said that in the oil platforms
1. self defence (=also customary international law (you can tell because of “inherent right”))
(definitely accepted)
art. 51
- there IS an armed attack:
oil platform, no invasion necessary
the armed force which are invading the other countrys. Why is it not efficient anymore? Its not the
only way we can use force (bv: cyber attack, )
Its not anymore just the armies invading another country
It’s a case by case analisis to look if it is
- Necessity (defending state has no other choice then to use force)
- proportionality (you look at the situation: what was the armed attack, how did they
defense themselves? was it proportional?
Restrictive approach
2. Anticipatory self-defence (=broader, CIL) controversial (they don’t rlly wanna say it is
accepted but in some cases the ICJ says it is accepted (but its debatable)
- imminent attack (its like the caroline case it is called caroline test: bc they call it
‘instant, overwhelming and leavling no other choice to use your force)
- nuclear bomb retaliation
3. Pre-emptive self-defence (=broader, CIL) controversial (this is NOT excepted internationally)
- not certain that there will be an attack (when where?)
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