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Principles and Foundations of International Law seminar notes
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Notes taken during the seminars of the course 'Principles and Foundations of International Law'.
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Seminars - Principles and Foundations of International LawExam tips:
- Essay questions: you demonstrate in-depth knowledge on a particular topic, including
your understanding of key concepts and controversies.
- Essential elements:
- Adequate and relevant information,
- Substantiated by sources,
- The presentation of the latter in a structured/organized way, and
- its (critical) evaluation.
- Structure: (1) introduction, followed by (2) the main part of the discussion, which
ends with (3) a conclusion.
- Explanation and evaluation: points presented must be explained, analyzed and
evaluated.
Seminar 1 - Wednesday 7 September 2022
- The Functions of International Law
- The (Colonial) History of International Law
Please reflect on the following question in light of the reading material and the content of the
lectures.
The Peace of Westphalia affirmed the idea that all states, powerful and weak alike, are
sovereign and co-equal. Is that an accurate description of the state of international law today?
→ United Nations General Assembly: every state has a seat and every state has one single
vote (= equality of states).
- Declaration on Principles of International Law (1970):
‘’The principle of sovereign equality of States:
All States enjoy sovereign equality. They have equal rights and duties and are equal
members of the international community, notwithstanding differences of an
economic, social, political or other nature.
In particular, sovereign equality includes the following elements:
a. States are juridically equal;
b. Each State enjoys the rights inherent in full sovereignty;
c. Each State has the duty to respect the personality of other States;
d. The territorial integrity and political independence of the State are inviolable;
e. Each State has the right freely to choose and develop its political, social,
economic and cultural systems;
f. Each State has the duty to comply fully and in good faith with its international
obligations and to live in peace with other States.’’ (p. 198 of Blackstone)
+ Sovereign equality entails both rights and duties. Can be seen in for example the UN
Charter. States have equal right to/opportunity to bring cases against one another.
Right to choosing your own political, judicial sytsems etc.
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, + Internal sovereignty: supreme authority within one's territory, while external
sovereignty relates to the recognition on the part of all states that each possesses this
power in equal measure.
+ External sovereignty: independence, or freedom from interference, not only in
relation to any would-be higher, that is, international or supranational, authority, but
also in relation to other states. As independence, external sovereignty is the freedom
of self-governance.
+ If other countries are not able to these things (adopt) then we (Western states) are
entitled to intrude in your sovereignty, because those ‘other states’ are not able to
solve issues themselves (‘unable & unwilling’-doctrine). ‘’Our rules are superior to
yours, so you have less sovereignty/rights.’’
+ The whole international legal system is based on state consent, but for other
international instruments that will not necessarily be the case (for ex. customary).
Some principles of certain states are more recognized than others, some states are for
ex. better documenters/have lawyers to better express their position on a certain
matter.
+ On paper there is formal equality, but reality falls short with that ideal. The UN has a
number of safeguards that protect against the abuse of power (for ex. General
Assembly).
+ International law is not meant to resolve the inequalities. It can only pay tribute to the
standard principle, but the application of that would rely on the power of the states.
However, there is an international lawmaking body where the equality of States is not
guaranteed. The United Nations Security Council shall consist of 15 members, 5 that are
permanent and 10 that are selected by the UN GA (art. 23 par. 1 Charter of the UN). The
Security Council is the highest decision-making body of the UN. The SC has primary
responsibility for the maintenance of international peace and security. Under the charter of
the UN, all member states are obliged to comply with the unanimous decisions of the SC.
- Among these five permanent member states, there are no African or Latin American
states.
- The fifteen states in the SC have the power to make important decisions, that every
other UN member state has to comply with. This means that they have more power
than states that are not in the SC. This shows that states are not equal, some states
have more power than other states.
- Also, the fact the other member states are obliged to comply with unanimous
decisions of the SC, shows that member states are not fully sovereign. They may have
chosen to join the UN themselves, but they have to comply with actions that are
approved by the SC even though they did not have a vote on those matters.
What does the principle of sovereign equality mean? Why is it important? (or is it?)
- Sovereignty → a political concept that refers to dominant power or supreme
authority.
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, - Sovereign equality → all states are equal under international law in spite of
inequalities between them in areas such as military power, geographical and
population size, levels of industrialization and economic development.
- Importance: if we look at real life examples, we basically need a state’s consent to be
able to sanction them for their wrongdoing (criticism). Because it relies so much on
state consent, you’ll also have the hurdle that the fact that a state is not a part of a
certain treaty. State consent is required for almost everything. The notion of
sovereignty can be seen as a stumbling block. But that does not necessarily mean that
it’s not important.
- Reciprocity→ because we all signed onto the treaty, then we have mutual
rights and obligations towards one another.
- What happens when one of the states violates their end of the treaty?
The implementation of international law is dependent on the parties
that are bound by that certain law. Therefore, there is no centralized
government, because it is all voluntarily/consensual.
Seminar 2 - Wednesday 14 September 2022
IRAC:
- Identify the issues
- Lay out the relevant law (rules)
- Apply the law to the facts; include analysis
- Reach a conclusion
Termination: legal relations that a treaty gave effect to will cease (end).
Suspend: the parties to a treaty agree that the obligations are not demandable/ or are not
expected to comply during the suspension period.
- Temporary
Hypothetical: The Republic of Alpha and the Kingdom of Beta are neighboring states that
together occupy the territory of a large island in the Emerald Ocean. This island is home of
the kuolu bear, a cute herbivore that inhabits the vast eucalypt woodlands of both Alpha and
Beta. Outside these two countries, the kuolu bear is only found in the tiny island State of
Cyclopedia, which is situated 15 kilometers off the coast of Alpha.
Around 15 years ago the number of kuolu bears suddenly began to steadily decrease in both
Alpha and Beta. The wood of eucalyptus trees was in high demand, and deforestation
endangered the habitat of the kuolus. Moreover, poachers had started to hunt the fluffy bears
for their precious fur. In order to save the kuolu bear population from extinction, Alpha and
Beta concluded the Save the Kuolu Bear Treaty (‘SKB Treaty’) which entered into force in
2006.
The SKB Treaty includes the following provisions:
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