Public International Law Summary
Rechtsgeleerdheid UU 2020 -2021
WEEK 1 – NATURE AND STRUCTURE OF INTERNATIONAL LAW
International law is the law between nations, the law between states. There is one representative (or
perhaps more of an authoritarian figure) of one state.
Positivism vs natural law
Positivism leads international law in the sense of written rules. Natural law shares the belief that we
have certain rights and obligations, even without regulations. This could for example be derived from
God. Natural law is associated with Christian universalism/values.
A state is only bound by those rules to which it has consented.
History of Public International Law
Peace of Wesphalia (1648): at this point in time, we see a consolidation of nation states in Europe.
Unlike in the past where the power was in the state, it has been fragmented and shared between
monarchs, the church and the pope.
After the Thirty Years War, there is a need for order and structure in the European world. People
sought international order that derived from agreed rules and limits and was based on a multiplicity
of “states” of equal importance. This concept spread to the rest of the world as well.
• International Telegraph Union (1865), Universal Postal Union (1874), Hague conferences (??)
• Interwar period: League of Nations, the predecessor to United Nations.
• After the First and Second World Wars: ICL (Nuremberg and Tokyo tribunals), UN Charter,
IOs.
• Decolonisation: self-determination. The people themselves can decide on the fate of their
land/people. This right has been exercised by former colonies in order to become states.
• Fall of the Berlin Wall: following the fall of the Berlin Wall, the US and Russia starting working
together which allowed them to develop more rules and practices in the field of international
law.
• Globalisation (economic; cultural) 1989
• Multiplication of actors
• Global governance
• 9/11: this is particularly important in the use of force.
• Populism has gained ground in the recent past, and is an attack on certain idea’s and ideals
within international law such as international organisations.
National and international law
Main differences:
• Domestic law provides a clear idea of what a state and nationals can do to each other. When
can a state restrict rights of nationals?
• Domestic law creates regulation on how citizens can interact with one another.
• National law does not interfere with other countries. It does not regulate how other
countries should interfere with one state in particular.
• International law can regulate certain trade issues, freedom of movement and such between
states.
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, • International law does not a have police force, parliament or concentrating force of authority
to enforce the law. It works more in a horizontal level than domestic law. States have
different reasons (and potential consequences) for respecting international law.
In other words: international law has no legislative or executive branch.
• International is decentralised and fragmented. Although there are international courts, there
is no central supreme court and there are different treaties on different topic. There is no
central parliament to pass the laws.
The relationship between national and international law
Monism
• A single and coherent legal system
• International law is directly applicable in a national legal system (incorporation).
• International law should be directly applicable in a legal system. Once two states agree to
certain rules, they should be automatically applicable in national law.
Dualism
• National and international law are two separate legal systems that operate independently.
• National parliament should adopt legislation that applies international law. International law
is transformed into domestic law first (transformation).
Pluralism
• The relationship between the two systems is more complex and diverse
• Dualist on certain issues, while monist on others.
Why do we have international law?
• Coexistence – states need to be able to coexist. We are in fact stuck together on one planet.
Examples are covid-19, climate change, prohibition on the use of force, use of sea, etc.
• Cooperation – there are benefits to cooperation. Cooperation can affect the quality of life in
a country, and states recognise this benefits. Examples: trade, human rights, international
crimes. This isn’t necessary for coexistence, yet it is still beneficial.
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,Key notions that explain how international law works
1. Sovereignty
Within a given state, that state has the supreme power over his own territory and is not
subject to the jurisdiction of other states.
There is equality of states: each state has 1 formal vote which counts equally.
2. Consent
States are bound by only the rules that they have consented/agreed to.
Critique on international law
• International law is not law. No police, no enforcing courts. International courts only work if
states consent.
• It’s just a collection of principles and values.
• It’s ineffective because it is violated all the time.
• However – as Louis Henkin said: “almost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time.”
Why do states obey international law?
Desire for order and predictability over chaos
James Brierly (1963): “the ultimate explanation of the binding for of all law, is that man (read:
person) … in so far as he is a reasonable being, is to believe that order and not chaos is the governing
principle of the world in which he has to live.
All states want to make sure that they’re not surprised by neighbouring states.
Consent and Obedience
States are bound only to the rules to which they have already agreed. Why would a state not obey
the rules they consented to? These are generally already in their interest either way.
Legitimacy
Credibility and reputation of a state can be questioned when it doesn’t respect international law.
Enforcement mechanisms
The courts themselves do not hold much power, however: there are retorsions (diplomatic) or
written/unwritten “contracts”.
For example: if a country mistreats your diplomates, you can choose to mistreat their diplomats.
Enforcement of international law
• International organisations can adopt sanctions against other countries. Example: the EU
has adopted sanctions against Russia in relation to Crimea.
• International courts and tribunals can relate to interstate disputes and international criminal
cases. Examples: (former) Yugoslavian court. Individuals can be held responsible for war
crimes by “hybrid courts”.
• Counter measures by large international powers.
Differentiation in primary and secondary sources
Primary source: written in treaties, are binding.
Secondary source: books, works of scholars, interpretation of international law. These are not
binding, but simply opinions.
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, Relationship between national and international law.
• From the international perspective:
States cannot refer to the rules of their own laws as an excuse or justification for not
complying with their obligations in the international legal order.
- Article 13, Declaration on Rights and Duties of States
- Article 27, Vienna Convention on Law of Treaties
- Article 32, ILC Articles on State Responsibility
• From the national perspective:
How does international law enter the domestic legal order? That is determined by each
state’s own constitutional law.
Key issues in the relationship between national and international law
• Validity (applicability) of international law in the domestic legal order.
• Direct effect (invocability) of international law in the domestic legal order.
• Primacy (supremacy) of international law over conflicting domestic law in domestic legal
order.
• All three issues mentioned above are regulated by the domestic constitutional law of the
state in particular.
International law is generally not preoccupied with how a state lives up to its international
obligations and it usually leaves it to each state to determine how it will implement its international
commitments.
There are exceptions, such as obligations to implement certain EU regulations and directives in their
domestic legal systems in a specific manner. Also, a number of conventions in international criminal
law also require state parties to take effective domestic measures to ensure that certain prescribed
acts constitute offences under national law and allow states to establish jurisdiction over those
offences.
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