Summary Learning Objectives Public International Law
Week 1 – The nature and structure of International Law
Literature:
- Hendriksen, chapter 1
Understand the history of the development of international law
- Pre-Greek Civilisations before 21 B.C. Treaty between lagash and Umma of
Mesopotamia settlement of disputes through arbitration, solmn oath for
observance.
- Ancient Greek and Roman times origin of certain principles and customs.
Treatment of foreigners, arbitration for settling disputes, treaties on
commerce, peace agreements.
- Colonialism 15th centurary onwards. The role of countries.
Acquisition of territories, sovereignty, freedom of high seas etc.
- Catholic church International institutions (Von Hagenbach Trial)
- End of the 16th century pope’s gradual loss of power. This led to the Peace of
Wesphalia 1648.
The peace of Wesphalia 1648 is the birth of modern international community. It is
important for the information of international law because the state becomes the
authority. So one person can speak in behave of the state.
(De Vrede van Westfalen is een reeks vredesverdragen die getekend werden
tussen mei en oktober 1648 in Osnabrück en Münster. Deze verdragen
beëindigden de Dertigjarige Oorlog (1618-1648) in het Heilige Roomse Rijk, en de
Tachtigjarige Oorlog (1568-1648) tussen Spanje en de Republiek der Zeven
Verenigde Nederlanden, waarmee Spanje ook formeel de onafhankelijkheid van de
Nederlandse Republiek bevestigde.)
- 19th century was the discussion of positivism VS natural law. SO which law
prevailed. Positivism prevailed, it was more popular than natural law.
Emergence of formal international institutions =
1. Int Telegraph Union (1865)
2. Universal Postal Union (1874)
3. Hague Conferences ()
- 20th to 21th century:
Interwas period – league of nations
After the first and second world war – United nations charter, IO’s
(international organisations), ICL (Nuermberg and Tokyo Tribunals) etc.
Decolonisation – self determination
Globalisation (economic; cultural) 1989 (fall of Berlin wall) Multiplication of
actors and global governance.
9/11
Populism
Understand the structure and nature of international law
There are two key notions that explain why we have international law:
1. Coexistence – we live together in the word, so we need to cooperate because one
country can’t fix covid-19 ,or any other problem, alone.
,2. Cooperation – We prefer to cooperate because we see the benefits. For example trade.
If it is easier to make a laptop in China, for lower costs, than it contains a lot of benefits
for the Netherlands.
There are two key notions that explain how International law works:
1. Sovereignty
2. Consent
States have supreme power over their territory and may not be subject to the jurisdiction
of other states. Each state has one formal vote which counts equally. States must consent
to be bound by international rules.
International Law is decentralized and fragmented. The sources of law show that
international law has a decentralized structure, because there are several divergent
sources of law:
- treaties
- customary law
- unilateral legal acts
- decisions io's (international organisations)
More of this in the second week.
Implementation of international law:
There is a lot of critique that international law isn’t law. Some say it is just a collection of
principles and values, that it can’t be enforced, that the states will act in their best
interests regardless of the rules and that it is ineffective because it is violated all the
time.
Why do states obey international law then? This because:
- There is a desire for order and predictability over chaos.
- Consent and obedience this means sovereign equality of the states.
- Legitimacy so credibility, reputation (for example, who would join the US in a
potential war against Iran?)
- Enforcement mechanism so retorsions (diplomatic) and contracts. For example
for:
1. International organisations
2. International courts and tribunals
3. Counter- measures (tegen maatregelen)
Are able to explain in what respects international law is different from
national law
,The most striking difference between international law and national law is:
- Separation of powers
- Horizontal vs. vertical relationship between the actors
- Enforcement mechanism this isn’t in international law
- International law as decentralized and fragmented
Domestic law (national law) is the law between the state and citizens and also the law
between the citizens. International law is the relationship between states. International
law has not a parliament or a police station. So there is not a enforcement mechanism.
Understand the difference between monist and dualist systems
There are two systems of relationship between national and international law:
1. Monism
2. Dualism
3. Pluralism
Monism – International and national law are a single and coherent legal system. SO the
international law is directly applicable in national legal system without a publishing.
Monists accept that the internal and international legal systems form a unity. In a pure
monist state, international law does not need to be translated into national law. It is
simply incorporated and has effect automatically in national or domestic laws. For
example, a country has accepted a human rights treaty, such as the International
Covenant on Civil and Political Rights, but some of its national laws limit the freedom of
the press. A citizen of that country, who is being prosecuted by his state for violating this
national law, can invoke the human rights treaty in a national courtroom and can ask the
judge to apply this treaty and to decide that the national law is invalid. They do not have
to wait for national law that translates international law.
So when someone in The Netherlands feels his human rights are being violated he can go
to a Dutch judge and the judge must apply the law of the Convention. He must apply
international law even if it is not in conformity with Dutch law.
When there is a difference between international law and national law, international
prevails. In the Dutch system, the EVRM always prevails.
As a result of the monism approach, it is a lot more difficult to independently monitor the
cabinet.
Our Dutch system also has some monistic traits, for example:
It is difficult for the parliamentary parties of coalition parties to adopt their own positions,
because much has already been laid down in the coalition agreement.
There is a lot of group discipline, which means that MPs are expected to vote the same as
their party members.
There is a lot of preliminary consultations, with which the cabinet tries to ensure that
members of parliament vote in favor of their new policy.
Dualism
Two separate legal systems that operate independently. National legislation adopted to
give effect to international law. Dualists emphasize the difference between national and
international law, and require the translation of the latter into the former. Without this
translation, international law does not exist as law. International law has to be national
law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national
, law in order to conform to the treaty or does not create a national law explicitly
incorporating the treaty, then it violates international law. But one cannot claim that the
treaty has become part of national law. Citizens cannot rely on it and judges cannot apply
it. National laws that contradict it remain in force. According to dualists, national judges
never apply international law, only international law that has been translated into
national law.
the need for translation in dualist system causes a problem with regard to national laws
voted after the act of translation. In a dualist system, however, the original international
law has been translated into national law - if all went well - but this national law can then
be overridden by another national law on the principle of "lex posterior derogat legi
priori", the later law replaces the earlier one. This means that the country - willingly or
unwillingly - violates international law. A dualist system requires continuous screening of
all subsequent national law for possible incompatibility with earlier international law.
When there is a difference between international law and national law, national law
prevails.
Pluralism
This is the relationship between monism and dualism. So that a state has a little bit of
both. For example the Netherlands. The Netherlands is an dualism and monism state. It is
dualism because the ministers and the state secretaries can’t be a member of the
parliament. This because they are a member of the government. They can’t be member
of both. But the Netherlands is also a monism state. The base of this approach lies in the
unwritten constitutional law, as laid down in the judgement ‘Grenstractaat Aken the third
of March 1919’. However, the Dutch constitution contains restrictions on this monist
approach.
Where in the Dutch Constitution is the connection made between international law and
domestic law? Important are articles 93 and 94 of the constitution. Which stipulate that
any binding provisions from international treaties, which would automatically have an
effect on the basis of a strict monist system, only take effect after they have been
published. And that not, as in a monist system, all international treaty provisions take
precedence over national law. But only those provisions that are binding.
General
International law does not determine which point of view is to be preferred, monism or
dualism. Every state decides for itself, according to its legal traditions. International law
only requires that its rules are respected, and states are free to decide on the manner in
which they want to respect these rules and make them binding on its citizens and
agencies.
Lecture question about week 1
