vrijdag 12 februari 2021
International law
Chapter 1: Foundations and structure of international law
PIL is the system of law that regulates the interrelationship of sovereign states and
their rights and duties to one another. Due to expanding reach of international law,
there had been the gradual development of a myriad sub-disciplines. International
law is a decentralized legal system in which it is primarily up to the legal subjects
themselves to create, interpret and enforce the law.
History: Europe (15th & 16th centuries): characterized by: 1. Multiple levels of
di erent allegiances and rights and obligations 2. The universal political and
religious forces of the Roman Empire and the Catholic Church. The Pope had
in uence over the princes/emperors/kings who governed their territories. However,
the population felt closer to the transnational networks of knights and merchants.
The ideas of the normative structure of the world were dominated by the natural law
(jus naturale) of the classical eras. There was also jus gentium, a law of people/
nations and hence inferior to natural law. There was no international legal structure,
still, legal obligations and contracts were created leading to agreements on issues
such as these merchants. Colonialism (Spanish explorers vs native indian
populations/kingdoms) posed a challenge. Francisco de Vitoria concluded that the
populations of the New World were part of the society of the human race and that
the acts of the Spanish were governed by natural law.
Europe (17th & 18th centuries): contours of a modern international legal system.
Partly because of Jesuit Francisco Suárez succeeded by Hugo Grotius.
International legal system used today is generally tied to the emergence and
consolidation of nation states in Europe. Birth: 1648 Peace of Westphalia (consisting
Peace of Munster and Treaties of Munster and Osnabrück) to end 30-year war. Idea
was to reduce powers of transnational forces (empire and religion) and instead
compartmentalize territory and individuals into sovereign states. Therefore, the state
became the primary source of authority —> increasing allegiance among citizens to
respective states of nationality.
Before PoW: Jean Bodin was in uenced by the French wars of religion:
conceptualized the important notion of state sovereignty that is vital to
understanding the porposes/functions of international law —> theory of a
‘sovereign’ possessing ‘absolute and indivisible’ power answerable only to god.
Hobbes and Locke also spoke about sovereignty.
19th century: acts of states could be judged according to whether or not they
conformed to transcendent ideals of fairness or divine will —> positivism: the only
true source of law was state will —> primary importance to state consent, whether
expressed explicitly in treaties or implicitly by customary practices adhered to by
states due to a belief that the practice was legally binding. Consensual theory:
unless a state has consented to be bound by a rule, no international legal obligation
exists and the state remains entitled to act as it pleases. Positivism owed much of its
appeal as a theory of international law to the emergence of formal institutions of
international law. It was also during this period that the rst multilateral treaties
regulating armed con icts were concluded.
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After the FWW the league of nations was founded (1919) to maintain world peace.
Also the permanent court of international justice (PCIJ)was founded in The Hague.
After the SWW top German o cials were prosecuted for international crimes before
a war crimes tribunal in Nuremberg. League of Nations —> United Nations
(maintenance of international peace and security, based on the principal of equal
rights and self-determination of peoples and on the sovereign equality of all its
member states) founding treaty = charter of the UN gave ban on force and gave the
Security Council the competence to maintain international peace and security and,
if necessary, authorize forceful measures (inactive during Cold War). UN charter also
established a General Assembly (with a consultative role) where all member states
are represented. This GA established the International Law Commission ICL whose
purpose is to promote the progressive development of international law and its
codi cation. The ICJ replaced the PCIJ.
European coal and steel community —> European economic community (EEC) —>
European Union (EU) at the Maastricht treaty.
Present: the western-driven ‘liberal international legal order’ shows signs of break-
up, partly because the international system has become more multipolar. See
china’s policy of land-grab and russia’s unlawful annexation of Crimea. There has
also been backlash against some of the values and institutions of the West, hence
the Brexit.
Structures of IL: since the Peace of Westphalia, the centre of the international
system has been the sovereign state, and international society is a society of
individual national states. International law serves as a supplement to national law.
The scope of international law is determined by the inadequacy of national law. The
content of international law (answers to the questions that cannot be answered in
national law) must be found in international law.
2 ways an issue becomes of interest to more than one state (substantive structures
of international law): 1. (Content) Two or more states may have colliding interests in
the substance of the issue 2. (Form) Involved states have agreed in a treaty to turn
the issue into one of an international character.
International law of coexistence (general international law) contains the legal
answers to questions that are inherently of interest to more than one state and
required to separate the powers of the sovereign states and thereby uphold
peaceful coexistence. Here lawyers can nd classic topics of IL, it also includes the
fundamental principles of treaty law and the secondary legal principles on state
responsibility. Horizontal: it is mainly concerned with the manner in which sovereign
states interact with each other. (Vague content, recognizable rules are rare)
International law of cooperation holds the legal answers to issues that are not
inherently of interest to two or more states but which have nevertheless been turned
into matters of international concern through the adoption of a treaty. (EU)
Basis of international obligation: It would appear that either the state is sovereign,
and hence not bound by international law, or it is bound by international law, and
thus not sovereign. It is however, a matter of perceiving international legal
obligations as a logical consequence of sovereignty —> peaceful coexistence of
sovereign states needs basic rules to dictate how states behave in mutual relations.
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All states accept that they are members of a society of states and that they bene t
from the rules required for maintaining peaceful coexistence within the society they
form. States never question that they are bound by international law, they accept it.
Relationship between IL & NL: IL asserts its own supremacy over NL. However, IL
is not generally preoccupied with how a state lives up to its obligations and it
usually leaves it to each state to determine how it will implement its commitments.
International law is applied di erently in national legal systems by the legislature and
national courts, this is a constitutional issue that varies from state to state. Monism
holds that IL and NL essentially form a single legal order or a set of mutuality
intertwined legal orders that are presumed to be coherent —> IL can be applied
directly in the national legal system (Hans Kelsen Grundnorm = same ultimate
source). Dualism holds that IL and NL are 2 separate legal systems that operate
independently, for IL to work, it needs to be incorporated into the NL (nordic states).
2 ways of incorporation: 1. Treaty is incorporated into NL by a short statute with the
treaty as an annex 2. Incorporated through a more thorough reformulation and
interpretation in new legislation.
Issue of enforcement of IL: there is no international police force or mandatory
judicial system that can enforce the law. However, there are complaint mechanisms
fa the ICJ. The policing and actual enforcement of breaches of IL is less promising.
If the UN Security Council does decide to take action it has a wide range of options
available to it to authorize the use of force to uphold or restore the peace.
States generally honor their legal obligations toward each other because states are
aware of the longterm bene ts to every one of a well-functioning international legal
system where promises are kept and agreements are honored. States also care
about their reputation.
Alleged inadequacy of IL in the 21st century: criticism is that the existing state-
centric con guration of the international legal system is outdated and at times
counterproductive to creating a more fair and just world. Fa, the consensual
character of treaty-making makes much needed progress on issues of global
concern, hard to achieve. IL often prioritizes stability and order over ‘justice’.
Chapter 2: Sources of international law
IL: lack of a universal legislature and a system of courts. It is a decentralized legal
system so legal obligations may derive from more than one particular source.
Natural law: sources of IL in elementary dictates of justice. Positivists: sources of IL
in evidence of state consent. Article 38 of the ICJ Statute is based on positivism.
States are always boundary those behavioral rules that are required for the
maintenance of peaceful coexistence.
Art. 38 ICJ Statute (general relevance): listing of sources of IL: primarily/law
creating: international conventions/treaties, customary law, general principles of law,
(unilateral statements), secondary/law identifying: judicial decisions & scholarly
contributions.
Conventions/treaties: most direct way for states to create rights and obligations
under IL. Only way for two or more states that want to enter into a formal legal
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