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International Law Summary
University of Groningen
2019-2020
, International law-Introduction
The Nature & Development of International Law
Week 1
11th November
INTRODUCTION
President Donald Trump set out to do allot of things when he became president in his campaign (2017)
Withdraw from….
NAFTA: Yes and No
-Re-negotiated the NAFTA & got a number of concessions from Canada and Mexico in the United States
Mexico and Canada Agreement (USMCA)
The Paris Agreement: Yes
-Withdrew from the Paris Agreement which will take effect after the 2020 presidential election, depending on
who wins they might actually withdraw the withdrawal!
NATO: No
-Didn’t withdraw from NATO but is pushing them to spend more on American military equipment
Break off….
Nuclear deal with Iran (JCPOA): Yes and No
-Deal whereby Iran agreed to eliminate its stockpile of nuclear weaponry
Yes: United States withdrew from that deal and then introduced sanctions by the United States against Iran
No: This deal was endorsed by the SC, if Iran is breaking the deal SC sanctions could be reintroduced, the US
can unilaterally trigger this but it has decided not to
o Why? The allies do not support that although it could unilaterally do it anyways it needs political
support in a sense
Ban….
Muslims from entering the USA: Yes and No
Yes: List of states from which it wouldn’t be so easy to get into the USA
No: States from which 9/11 hijackers came have not been included such as Saudi Arabia
Enact….
Measures for waterboarding (or torturing) suspected terrorists: No
-Did not come to fruition, allot of opposition in the US to this
Impose….
Additional taxation on Chinese imports: Yes, but its diluted
-He also introduced additional taxation on imports from other nations and the EU
Summary:
o We are not so interested in the facts but in the question of law: Does the USA, by taking measures violate
International Law?
Depends on the measure and rules applicable look at the source of IL for rules
(1) Paris agreement withdrawal: Lawful and provided for in the Paris Agreement, must just follow the proper
procedure
(2) JCPOA: Lawful because it is more of a political agreement than a legal agreement, it’s not a treaty
o Often to decide if it is lawful/not lawful we need to look at the sources of IL under which we will make that
judgement, we may need to:
(1) Interpret the treaty
(2) Look for customary IL
HISTORICAL DEVELOPMENTS OF INTERNATIONAL LAW
1648: The Peace of Westphalia
-The birth of the modern state system
-States as political entities have sovereignty, they are not subject to any higher authority
- ‘Sovereignty’ which was devised by Jean Bodin in the 16th century as a concept didn’t actually feature in the
treaties concerned
, Peace in Westphalia ended two wars:
(1) The 80-year war between Netherlands and Spain (1568-1648) (Treaty of Munster)
-Spain accepts independence of Netherlands
(2) The 30-year war of Protestants v Catholics ‘The religious wars’ (1618-1648) (Treaty of Munster and
Osnabruck)
-Started out as a war between Catholics and Protestants but then turned into a European War
Brutality: In German land 30-40% of the population died in that war
Triumph of Secular Authority: Principle of cuius regio eius religio meaning ‘whose realm, his religion’.
Whoever controlled the authority in a state determined the religion.
17th/18th/19th century: Historical developments
Europe is the predominant world power at this time
(1) Break with Feudalism
-Ending of the system whereby the Emperor/King is at the top and all the nobles below swear allegiance
to the emperor/king who in return grated protection to the nobles that were aligned to him
-Centralisation of power, increase in the authority of the state itself
-A move from feudal and city statesnation states
-One identity in a country rather than a feudal or religious identity only
(2) Imperialism and eventually Colonialism
o Imperialism is the idea behind the practise of colonialism, imperialism refers to political or economic
control whereas colonialism refers to when one nation assumes control over another
I.) Imperialism: Strong countries in Europe tried to become the leaders of various territories
II.) Colonialism: After the rediscovery of the USA by Columbus imperialism increased, eventually they
would be colonised
…. Started with North/South America and then moved to Africa and Asia, although allot of Africa/Asia
was actually colonised much later in the 19th century
(3) Move from natural law to positivist law
Natural law
-The law is universal
-Law comes from either divine law (god given) or ratio which comes from observation of nature
-Less consistent, people would come to different conclusions when using rational thinking
Positivist law
-The law is applied by an authority in a certain region
-Law comes from authority
-More consistent, codification movement: criminal/civil law is systematised
(4) The Congress of Vienna: 1815
-Emerged out of the French Revolution (1789) and Napoleons attempt to conquer all of Europe
-Diplomatic conference was held whereby there was a new attempt to put down the law in Europe
Which counties are independent and how we will solve conflict between states
-Consolidated certain empires and was the start of the congress system: the big powers would call a
conference to deal with conflicts that threatened the peace of Europe
-The Congress system as somewhat successful, conflicts in Europe were quite low
-Aimed to organise diplomatic relations, states would discuss the problems of the continent and reach
solutions without having to resort to war
20th Century: Wars in the European continent
For centuries war had plagued the European continent because states used military power to get their way
(1) World War 1 (1914-1919)
o Positive result: The League of Nations
-1919: The League of Nations is included as part of the Peace Treaty of Versailles
-Politicians/diplomats decided to move away from the conference system and instead consummated an IO
-Not the first IO in existence, there was lots of practical ones already in existence, but it’s the first IO that
was devoted to the maintenance of international peace and security
…the world wasn’t ready for this level of international relations
(2) World War 2 (1939-1945)
o Positive result: The United Nations
, -1945: Charter of the UN
-Decided at the United Nations conference on International Organization in San Francisco
-Not a perfect document, its quite a badly drafted legal instrument, its much more political than legal
-Proven to be the stepping stone in the foundation for the UN
-78 years later the UN is still here
-No world wars have occurred even though there have been regional conflicts
20th Century post WW2: From peaceful co-existence to co-operation
-Co-existence=States trying to get along
-Co-operation=States actively cooperate in IOs
o The UN is just one of these organizations there is also;
The International Legal Organization
The World Trade Organization
The Food and Agricultural Organization
o Often these organizations will not have the authority to make binding decisions, but undoubtably the
world has become more peaceful
20th Century: Decolonization
o Decolonization wasn’t new, we did have decolonization before this in the 19th century;
-Decolonization of the Ottoman Empire
-Decolonization of Austrian-Hungarian Empire
o However, in the latter half of the 20th century it grew in importance
-Africa and Asia are decolonized
-This has had a great impact: when the UN was created it had 55 signatory states, now we have 193
20th century: Geographical expansion leads to universality of IL
-Most land in the world is claimed by a sovereign state
-There are certain political communities left in the cold but mostly IL has become universal
-Even if we don’t accept Taiwan as a state, we probably still see it as a subject of IL and don’t accept it to
commit an Act of Aggression
VALUES AND PURPOSES OF INTERNATIONAL LAW
Description of law (Shaw)
o Law is that element which binds the members of a community together in their adherence to recognised values
and standards. It consists of a series of rules regulating behaviour, which reflect to an extent the ideas and
preoccupations of the society within which it functions.
Rights as well as obligations to citizens
Values of international law
‘One’s judgement of what is important in life’ (Oxford online dictionary)
o Examples
-Life and limb
-Freedom (independence/autonomy)
-Security/safety
-Power (military, economic, financial)
-Soft power (influence)
-Development (resources /opportunities)
-Companionship (sociability)
-Fairness (equity/justice)
-Solidarity
The purpose of international law
(1) The Regulation of international relations
-Previously: Exclusively relations between states
-Nowadays (turn in the 20th century): Regulation of relations between a number of different actors (broader)
such as international organizations, individuals and even multinational companies. However, sttes are still the
primary actors.
, (2) Substantive goals of international law (similar to the values we discussed)
-International order
-International peace
-International justice
-Human rights
-Democracy
-Free trade/development
NB: The goal orientated approach can be scrutinized, just because you pursue a goal cannot act as a
justification when the means you use is unsatisfactory. This is teleological reasoning. Lots of treaties have
goals which sometimes conflict as well.
(3) Effectiveness
-The principle of reciprocity: The policy and decisions of a state are influenced by the consideration of
weather other states may use such policy or decision against that state.
This is also relevant to the creation of CIL (state practise)
-This could lead to creation of new CIL if many states followed. To let an exception in could always be a
dangerous precedent so states have to be careful how they act
Example: US Act on denying immunity in relation to states involved in 9/11 attacks; will other states now also
restrict immunities?
THE NATURE OF INTERNATIONAL LAW
The concept of ‘law’
(1) Hugo Grotius
Material: Book-On the Law of War and Peace (1625)
‘No association of men can be maintained without law…surely also that association which binds together the
human race, or binds many nations together has the need of law’
o Suggested we do not merely need law within a state but also between states
-Builds on ideas of Cicero ‘where there is a society, there is law’, he infers that were there is a unity of states there
must also be law
(2) John Austin
IL as a moral order
Material: Book-Lectures on Jurisprudence (1869)
a.) Law is from the sovereign: ‘Every positive law, or every law simply and strictly so called, is set by a
sovereign person, or sovereign body of persons’
b.) Law is a command: ‘laws properly so called are species of commands’
c.) Every command has a sanction attached: ‘Every sanction [...] annexed to a command’
Law is a command; the command comes from the sovereign; and if the command is disobeyed then there will
be a sanction
o This means we cannot explain international law in the same way as national law. In IL there is no
sovereign to give a command and therefore there is no sanction annexed to a command.
a.) IL is opinions and sentiments: ‘The so called law of nations consists of opinions or sentiments current
among nations generally. It therefore is not law properly called.’
b.) No supreme government: ‘There is no supreme government […] the government commanding does not
command in its character as political superior.’
International law is not law but is morality
(3) Hans Kelsen
IL as a legal order
Material: Book-The principles of international law (1952)
o Challenged Austin: You don’t need sovereignty to explain sanctions
o International law has sanctions even through there is not one sovereign:
a.) Reprisalsacts which, although normally illegal, are exceptionally permitted as a reaction of one
state against a violation of its right by another state
, b.) Warif other states violate international law you can go to war to sanction that violation
Therefore, IL is law because it has sanctions, it is simply a law without one sovereign but multiple
sovereigns. Hansen explained that all legal orders are coercive meaning there is a sanction involved
for violation. Because it has sanctions it is more than a moral order and is a legal order.
The foundation of law
(1) Thomas Hobbes
Material: Book-Leviathan (1668)
The state of nature (hypothetical): In nature men are equal but you cannot be sure of your safety; this makes
everyone insecure; ‘the life of man, poor, solitary, nasty, brutish and short.’ There is no central authority
which leads to the state of ‘war of all against all’. Contextually this was the time of the civil war in England
and so it was a dangerous and pessimistic period.
Overall: ‘Where there is no common power, there is no law: where there is no law there is no injustice.’
Creation of a social contract: When you enter society, you do this for the preservation of your own life. You
subject yourself to authority but you must follow the sovereign and cannot rise up in rebellion against him.
(2) John Locke
Material: Book- Two Treatises of Government (1690)
The state of nature (hypothetical): In the state of nature there is law, but we don’t know what it is. There is
no legislator, judiciary or executive and so we can’t find out what the law is because there is no authority to
tell us.
Overall: He believes that there is law in the state of nature and not complete chaos, but its hard to determine
what this law actually is.
Creation of a social contract: When you enter into a society you do this for the preservation of your property
(your life, liberty and estate.) You subject yourself to authority for your own gain but if the sovereign is
abusive you can rise up in rebellion.
The foundation of international law
(1) One state: National legal system:
o Vertical relationship, centralised authority which:
-legislates
-adjudicates
-enforces
o Law is imposed upon individuals weather they like it or not: individuals as subjects of the law
(2) Multiple states: International Law
o Horizontal relationship-multiple authorities because all of the different states therefore;
-States make the law,
-States enforce the law
-States agree to adjudication
Which leads to….
-Consensual law-making
-Adjudication by consent
-Unilateral enforcement (except when it comes to SC which can make a decision binding on all states
of UN)
Side note:
Q: Are states in international relations in the state of nature?
A: Probably an exaggeration to say that states are in the state of nature where they should all fear each
other because there is not this common/central authority which can tell states what to do, the closest is
the SC of the UN, but 5 permanent members have a veto.
THE DEVELOPMENT OF INTERNATIONAL LAW
, International peace and security
o 20th century: Two world wars
-Expansion geographically of peaceful nations
-Improvement of technology: destructive force stops states engaging in war
o The United Nations
-The restriction of armed force
Prohibition on the use of armed force: art 2(4) Charter
Exception of self-defence: art. 51 Charter
o SC has its own monopoly in this respect
Aggression, breaches, threats: art.39 Charter
Centralization of enforcement: art. 41-42 Charter
System not implemented as envisaged
International Organizations=subjects of IL
Self-determination of peoples
o The European era: 16 th-20th century
-Characterised by imperialism and colonialism
o Globalisation (middle of the 19th century)
-Development in transport, trade and education across the world
o Decolonization (middle of the 20th century)
(1) Principle of self-determination
Preamble (we, the peoples) and Article 1 Charter
Article 73(b) and Article 76(b) Charter: The charter as a colonial document
(2) Right of self-determination
Declaration on granting of independence to colonial countries and peoples: GA Resolutions
1514/1541 (1960)
Article 1 ICCPR & ICESCR (1966)
(3) Prohibition of colonial, alien, racist domination
Peoples= subject of IL
Human Rights
o Individuals have rights under IL
Article 1 (3), 55-56 Charter
UDHR (1948)
ECHR (1950)
ICCPR (1966)
International Criminal Law
o Individuals and have obligations under IL
o Especially related to war crimes, crimes against humanity and genocide
o International precedents
Nuremberg/Tokoyo Tribunals
Yugoslav/Rwanda Tribunals
(created by the SC)
o 1998: The Rome Statute of the International Criminal Court (entered into force in 2002)
2016: Withdrawals from Rome statute?
i.) Gambia & South Africa have reconsidered
ii.) Burundi/Philippines have withdrawn
Relevant legislation/cases
The Charter of the United Nation as an expression of modern-day IL
(1) International peace and security
Article 2(4): prohibition on the use of armed force
, Article 51: Exception for self-defence
SC monopoly…
Article 39: Breach, threat, aggression
Article 41-42: Centralization of enforcement
(2) Self-determination
Preamble (we, the peoples) and Article 1 Charter
Article 73(b) and Article 76(b) Charter: The charter as a colonial document
(3) Human rights
Article 1 (3), 55-56 Charter
GA Resolution 2625 (pg 128) ‘The principles of international law concerning friendly relations and
cooperation among states in accordance with the charter if the UN’:
o Allot of it elaborates on Articles 1 & 2 of the UN Charter
(1) The principle that states shall refrain from threat or use of force against another state or in a manner
inconsistent with the charterArticle 2(4)
(2) The principle of states settling international disputes by peaceful means and not endangering national
peace and securityArticle 2(3)
(3) The principle not to intervene with domestic jurisdictionArticle 2(7)
(4) The duty to cooperate with each otherArticle 2(5)
(5) The principle of equal rights and self-determination of peoplesArticle 1(2)
(6) The principle of sovereign equality Article 2(1)
(7) The principle of good faith in fulfilling charter obligations Article 2(2)
Case law: Lotus (1927)
Facts: there has been a collision in the high seas between French vessel lotus and a Turkish vessel. It needs to
be determined if there has been any rules of IL violated by the prosecution of the French Lietenant Demons in
Turkey under Turkish law. The French argue that there must be a title (permission) to jurisdiction in IL, the
Turkish authorities argue that as long as jurisdiction does not conflict with a principle of IL it is allowed.
Interesting exerpts (paras 44-47)
The positivist permissive legal order
44: International law governs relations between independent states which emanate from their own freewill,
restriction on states cannot be presumed
45: There must be a permissive rule in order for a state to exercise its power in the territory of another.
Jurisdiction is territorial and cannot be exercised by a state outside its territory except if there is a permissive
rule in IL
46-47: However, a state may exercise jurisdiction in its own territory in respect of a case which relates to acts
which have taken place aboard where there is no permissive rule. There is a level of secretion awarded to
states here, but they must not overstep it.
Judgement: states can act however they want as long as they do not contravene an explicit prohibition
Positive permissive legal order (para 44)
, International law
The Sources of International Law
Week 1
OUTLINE
(1) Sources of IL
(2) Treaties (in detail)
(3) Customary IL (in detail)
(4) General Principles of law (in detail)
(5) Judicial decisions (in detail)
(6) Writings of the most highly qualified publicists (in detail)
SOURCES OF INTERNATIONAL LAW
o The fact that there is no central authority in international law due to the clash of competing sovereignties, this
actually has a big impact on its sources
International law: Horizontal situationindefinite method of discovering what the law isnot a clear
hierarchy of sources because there is lack of a legislature, executive and structure of courts within IL
National law: Vertical situationdefinite method of discovering what the law isclear hierarchy of
sources because there is a graduation of authority imparting to the law a large measure of stability and
predictability
Authority/voluntarism/consensualism
-International legal positivism: States as authorities acting together
-Consent can be implicit (CIL) (referred more commonly to as ‘consensus’) or explicit (treaties)
Case law: Lotus (1927) PCIJ
Facts: Crash on the high seas between Turkish and French boat
QOL: Does the Turkish authorities have jurisdiction, or is this a case of flag state jurisdiction as the French
argued?
‘International law governs relations between independent states. The rules of law binding upon states
therefore emanate from their own freewill as expressed in conventions (treaties) or by usages generally
accepted as expressing principles of law’ (probably also a reference to CIL)
Article 38ICJ Statute:
o Widely recognised as an authoritative and complete statement as to the sources of IL, since all 193
members of the UN are by virtue of Article 93 of the Charter ipso facto parties to the statute, it
expresses universal perception.
o Many treaties which create tribunals do not have a list of sources such as the ICJ and the Rome
Statute, they will just have to interpret and apply the treaty of IL in question
1. The court must decide cases in accordance with international law and will for dispute settlement
will apply;
Primary means
Law creating processes
a.) International Conventions (treaties)
b.) International Custom (CIL)
c.) General Principles of law
Subsidiary means for the determination of rules of law above, used to find out what the law really is
Law determining agencies= Means determines the status and content of the rules of law
d.) Judicial Decisions
e.) Teachings of the most highly qualified publicists
…..technically this is an ‘applicable law’ clause rather than per se a ‘sources list’
, How does this work?
o First, we look at the primary sources and then we use the subsidiary sources to find out what the law
really is and make sense of the law:
(a)Interpretations of treaties
(b)How we should assess state practise
Is it widespread enough?
Are specially affected states involved?
2. The court can also decide a case ex aequo et bono but only if the parties agree
-This means that the court will decide a case not strictly in accordance with IL but by taking into account
justice and equity
-This has never actually happened; parties really prefer that the court solve cases according to the law!
Non-exhaustive list of sources of IL given in 38 ICJ, the court may use other sources to resolve a dispute
Unilateral declaration/statements
-ICJ, Nuclear Tests cases (1974) paras 42-46
Facts: The minister of foreign affairs gave a number of statements which said that after they had
completed the series of tests they would go underground with the testing which would lead to less
radioactive fallout. These statements made to the press expressed an acceptance of the legal obligation
no linger to carry out atmospheric tests.
-it is important to look at the intention of the state when assessing unilateral declarations to be bound
as well as the element of publicity
-International law Commission (ILC), Guiding Principles on Unilateral Declarations (ILC) (Not in
EIL): subsidiary source of interpretation
Binding decisions of International Organizations
-They create rules for states to follow
-Some can make general rules such as the EU
-The SC can make general rules (carried out by all states) or specific obligations (carried out by a
particular state) there is a distinction here.
-Binding decisions are made by IOs but they don’t always have to be carried out by states such as the
determining of the budget, although of course certain states may have to pay towards the budget!
Sources which may cause confusion but which are not sources of law!
Non-binding GA Resolutionsinterpretations of the treaty or they may contribute to CIL because
states engage in practise based on the resolution or because they express opinio juris. They may also
form the basis of a new rule of custom.
Soft lawnot actually law (also encompasses GA Resolutions)
-Soft law is not law
-GA resolutions is a prime example
-Resolutions may evidence an existing custom or constitute usage which may lead to the creation of a
custom
-They are important in the general framework of international legal development
-not all documents have to be binding to exercise influence in international politics
-They may along with recommendations, guidelines and codes of practise or standards be formalised
into a binding treaty or acceptance as CIL or not!
Jus Cogens norms (‘compelling law’)not actually a source by itself but more based on existing
sources
International Law Commission
-Exercises Article 13 Charter competence of GA
-34 members appointed from lists submitted by national governments
(1) Making treaties
a.) decide a topic
b.) prepare a draft
c.) submit to various states for comments
d.) international conference convened by UN
e.) eventually a treaty will emerge
(2) CIL
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