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week 1:#1 Nature and structure of international law
What is (public) international law
Regulation of international relations:
- subjects, states, and the relations between them are the primary subjects of public
international law
- sources: processes you need to go to before a norm can termed a norm of inter. law.
Primary sources: treaties
Relationship with private international law:
private inter. law→ between private persons→ car crash between dutch and
italian on german soil
Relationships with international politics:
- politics determines law
- law determines politics
History and theory of inter. law
Oldest treaty: 1283 BC
Treaty of Westphalia, 1648: Europe a independent state
systematization: 17th century
Naturalism v positivism: moral is law v consent to be bound
Basic elements of international law
- sources→ treaties, customary international law, general principles of law
- subjects→ mainly states, intergovernmental organization, multinationals,
NGO’s
- jurisdiction→
- immunity→
- obligations and responsibility→
- dispute-settlement→
- relationship with national law→
Specific fields of international law
- Human rights law
- humanitarian law
- security law
- law of the sea
- environmental law
- institutional law
- space law
- air law
- economic law
- criminal law
- development law
- european law
,#2 International and national law
From the international perspective
- Every state has the duty to carry out in good faith its obligations arising from treaties
and other sources of international law, and it may not invoke provisions of its
constitution or its laws as an excuse for failure to perform this duty (art 13,
declaration on rights and duties of states)
- A apry may not invoke the provisions of its international law as justification for its
failure to perform a treaty (art 27, vienna convention on law of treaties)
- The responsible state may not rely on the provisions of its international law as
justification for failure to comply with its obligations (art 32, ILC articles on state
responsibility)
From the national perspective
Effect of international law in domestic legal order is determined by domestic law
Dualist or monist approach:
- monism
- International law automatically part of domestic legal order (incorporation)
- Dualism
- international law needs to be transformed into domestic law first (transformation)
Key issues
- validity(applicability) of inter law in domestic legal order
- direct effect(invocability) of inter. law in domestic legal order
- primacy(supremacy) of inter. law over conflicting domestic law in domestic legal
order
- nb. Issues all regulates bij domestic(constitutional) law
Validity in the Netherlands
- All international law is valid in domestic legal order
- Domestic law must be applied in conformity with all international legal obligations of
the Netherlands
- Cannot lead to a contra legem interpretation of domestic law
- Based on principle of dutch customary constitutional law
Direct effect in the Netherlands
- only provisions of treaties and of decisions by inter. organizations which
are binding on all persons by virtue of their contents can be invoked
directly→ art 93 Gw
Primacy in the Netherlands
- Dutch law is not applicable if suh application is in conflict with provisions
of treaties or of decisions bij international organizations that are binding
on all persons→ art 94 Gw
, week 2: Sources of international law
#1 sources
Where does domestic law comes from?
Act of parliament or bill is made by the government together with the States General.
Sources of international law
- The sources of int. law refer not a particular “place” (lawmaking institution)
- .... but to particular process
- Article 38 ICJ Statute
- The court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. inter. conventions
b. inter. custom
c. the general principles of law recognized by civilized nations
- State consent is the basis of all legal obligations
“The rules of law binding upon states emanate from their own free will as expressed
by usages generally accepted as expressing principles of law
Convention or treaty
lawmaking treaties:
- prepared by Inter. law commission
- they make the first draft
- further negotiated by the representatives of the states of the international community
- they agree to text which can later be ratified by the states
Contractual treaties:
- made by two or handful of states
- regulate particular issues of interest only of those states
International custom
- “A rule which is created and sustained by the constant and uniform practice of states
in their international legal relations, in circumstances which give rise to a legitimate
expectation of similar conduct in the future.” - ILA, 2000
General principles of law
- Principles common to all legal orders
E.g. good faith, estoppel, responsibility for wrongful acts, res judicata, pacta sunt
servanda, ex injuria jus non oritur, sic utere tuo ut alienum non laedes, nemo judex in
causa sua,etc. (not actio popularis)
- Principles obtained through induction from more specific positive rules on
international law
Function of general principles of law
- The function of jurisprudence is to resolve the conflict of opposing rights and interests
by applying, in default of any specific provision of law, the corollaries of general
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