Samenvatting
Samenvatting Inleiding Internationaal/EU Recht (640325-B-6)
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Samenvatting EU-recht & internationaal rechtJanuari t/m mei 2020
Internationaal recht:
Week 1: who is bound by international law & what is it? Sources and subjects
Chapter 1, sections 1.1 & 1.2 (p. 1-9), chapter 2 (p. 21-39) and chapter 4 (p. 59-80)
UN general assembly makes resounding vote in favour of Palestinian statehood – article
Kosovo’s independence is legal, UN court rules – article
Week 2: how is international law enforced? Legal responsibility and dispute settlement
Chapter 1, sections 1.5 & 1.6 (p. 13-17), chapter 7 (p. 120-142) and chapter 12 (p. 235-253)
International Court of Justice – link
Week 3: what are some limitations and exceptions in international law? Jurisdiction and immunities
Chapter 5 (p. 82-97), chapter 15 (p. 303-323) and chapter 6 (p.98-119)
Case information sheet Al-Bashir case – article
Al-Bashir case ICC appeals chamber confirms Jordan’s non-cooperation but reverses the decision
referring it to the ASP and UNSC – article
Week 4: how might international law change? Uses of force
Chapter 1 (p. 17-18) and chapter 13 (254-278)
United nations charter chapter VII
A statement to the House of Commons by prime minister Theresa May following the Salisbury incident
– article
EU-recht:
Week 1: what is EU law and who is bound by it? Subjects and sources
Chapter 1, 5 & 6
Case 26-62 Van Gend and Loos
Case 6/64 Costa v. ENEL
Week 2: how is EU law enforced? The EU’s judicial system
Chapter 7, 8 and 4, sections 1 and 3
Case C-752/18 Deutsche Umwelthilfe
Week 3: what does the EU regulate? The realization of the internal market
Chapter 9 & 11
Case C-34/09
Case C-256/11
Week 4: how does EU law deal with current challenges? The case of Brexit
Chapter 19
Case C-327/18
Case T-458/17
,Week 1: who is bound by international law and what is it? Subjects and
sources
Learning goals:
• What is international law, including some of its features?
• What is international legal personality and who can have it?
• What is a State?
• What are the main sources of international law?
• What are some legal techniques for resolving conflicts between custom and treaties, and
between treaties?
Chapter 1
Public international law is a system of law that regulates the interrelationship of sovereign states and
their rights and duties to one another. Public international law is not the same as private international
law, which consist of national laws dealing with conflicts of law and establishes rules for the treatment
of cases that involve a foreign element.
A brief history of international law
Cultures and communities have traded and interacted for millennia and there are numerous historical
records of the creation of more or less formal practices and mutual expectations that may be considered
to be early traces of what we today call international law. Whatever their preferences, cultures and
traditions, political communities have felt a need for international rules and principals and the certainty
and predictability they bring to their international relations.
Europe in the late middle ages was characterized by both multiple levels of different allegiances and
rights and obligations as well as the universal political and religious forces of, respectively, the Holy
Roman Empire and the Catholic Church. By providing the spiritual authority of the Western world, the
pope in particular was able to exert considerable influence over the various princes, emperors and kings
who governed their territories. But the network of knights and merchants were a transnational nature
and the populations at the time often felt a closer sense of allegiance to such communities than their
fellow nationals. It was also a time when ideas about the normative structure of the world were
dominated by theories of natural law originally developed in the classical eras. Natural law contained
an all-embracing set of ideas about natural and social life in the universe, and though primarily focused
in the individual and his or her relation to the world, it also applied to states by virtue of the fact that
rules were also individuals and therefore subject to it. Nest to natural law, jus gentium, a law of
people/nations and hence inferior to natural law, at times simply perceived as being derived from the
latter.
The period was also the dawn of colonialism, and the early confrontations between Spanish explores
and native Indian populations and kingdoms in the New World posed a particular challenge to the
philosophers and legal scholars of the time.
It is, however, not until the 17th and 18th centuries, that we begin to see the contours of a modern
international legal system. For one thing, a much clearer distinction was introduced between jus naturale
and jus gentium and it is from the latter that international law as we know it would subsequently develop
as a distinct discipline.
The international legal system that we recognize today is generally tied to the emergence and
consolidation of nation states in Europe. The birth of the international state system is usually tracked
back to the 1648 Peace of Westphalia that brought an end to the Thirty Years War that had ravaged
continental Europe. In the peace treaties of Westphalia, consisting of the Peace of Munster and the
Treaties of Munster and Osnabruck, the major European power sought to establish a semblance of order
and structure in an otherwise anarchical ad disorderly European world. The idea was to reduce the
powers of transnational forces, like empire and religion, and instead compartmentalize territory and
individuals into sovereign states. In turn, over time, this established the state as a primary source of
,authority, paving the way for an increasing sense of allegiance among citizens to their respective states
of nationality.
By seeking to create an international order derived from agreed rules and limits and basing it on a
multiplicity of states of equal legal importance, Westphalia was a decisive turning point, and what had
initially merely been conceived of as a concept of order for war-torn continental Europe spread to the
rest of the world and to this day remains an key building block of international law.
The 19th century was dominated by a full-on assault on the idea that acts of states could be judged
according to whether or not they conformed to transcendent ideals of fairness or divine will.
Consequently, positivism attached primary importance to state consent, whether expressed explicitly in
the form of a treaty or implicitly by customary practices adhered to by states due to a belief that the
practice was legally binding. According to the 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.
Unlike natural law, then, positive law does not envisage a universal legal system, but rather one that is
fragmented and in which states are bound by different legal obligations.
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 first multilateral treaties regulating
armed conflict were concluded.
The destruction and carnage of the First World War dominated events in the interwar period. The
primary development was the creation in 1919 of the League of Nations – an organization tasked with
maintaining world peace. While the League did not prohibit war, it required states to submit potential
destabilizing disputes to one of a number of settlement mechanisms and to desist from resorting to war
until a certain period had elapsed following the decision by that mechanism. A major achievement in
the period was the successful establishment of the Permanent Court of International Justice based in The
Hague in the Netherlands. Although the Court did not have compulsory jurisdiction, it did build a
substantial body of case law and was the forerunner to the present-day International Court of Justice.
The period after the Second World War was a time of major achievements in international law. The
League of Nations was replaced by the United Nations, which was entrusted with the maintenance of
international peace and security. The UN is built on solid Westphalia principles and based on respect
for equality of all its member states. The founding treaty of the UN – the Charter of the United Nations
– introduced a ban of the use of force and gave a collective organ – the Security Council – the
competence to maintain international peace and security and, to do that, if necessary, to authorize
forceful measures. From then on, the maintenance of peace and the conduct of war were to be a collective
effort. It was, however, not until after the collapse of communism and the successful UN-sanctioned
ousting of Iraq from Kuwait in 1991 that the collective security system in the UN began to live.
The UN Charter also established a General Assembly where all member states are represented. Although
the Assembly only has a consultative role, it offers an organizational structure where all states can voice
their opinions and raise their concerns. The Assembly has also been instrumental in the promotion of a
wide range of goals of global interest. One of the best examples is the important role it played in the
decolonazation process. The Assembly has also helped advance the development of international law,
in 1946 it established the International Law Commission whose primary purpose is to promote the
progressive development of international law and its codification.
The UN serves as an umbrella structure for a number of important international organizations. A 1944
conference created the most important international organizations for the regulation of trade and
monetary policy: The International Monetary Fund, the international Bank for Reconstruction and
Development and the General Agreement of Tariffs and Trade. While GATT was created to liberalize
world trade by reducing tariffs and other barriers to trade, the IMF was establishing to ensure exchange
stability and to make resources available to states with balance of payments difficulties. In 1995, the
World Trade Organization replaced the old GATT system. The creation of the UN and its various sister
, organizations illustrates that states often seek to pursue common goals by crating international
organizations.
An important regional organization is the North Atlantic Treaty Organization (NATO), whose members
agree to offer each other mutual defense in the event of an attack by an external factor.
Chapter 2
Sources of law determine the rules of legal society and, like national legal societies, the international
legal society has its own set of rules. Thus, when we look for the content of international law, we consult
the sources of international law. It is in the sources of international law that one finds the legal answers
to the questions that cannot be found in national law. In international law the lack of a universal
legislature and a system of courts with compulsory jurisdiction often makes the task of uncovering the
law more difficult. Furthermore, since international law is a decentralized legal system, legal obligations
may derive from more than one particular source.
Legal sources enable legal subjects to distinguish between legal norms and those of a merely political
or ethical nature. Whether expressed explicitly in a treaty or more tacitly in an international custom
accepted as law or in a general principle already recognized by states, all international legal obligations
are considered to be derived from the consent of the state. States are always bound by those behavioral
rules that are required for the maintenance of peaceful coexistence in the society of which they form
part.
Article 38 of the Statute of the International Court of Justice
The classical attempt at listing the sources of international law is found in article 38 of ICJ Statute.
The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly recognized
by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
Although article 38 is purely directed to the Court, it is considered of general relevance. While the
former is constituted by conventions (treaties), customary law and general principles, the latter refers to
judicial decisions and scholarly contributions. The first three sources are law creating because they
create (new) rights and obligations whereas the latter two are law identifying since they merely apply
or clarify the content of existing law.
Convention (treaties) as a legal source
The adoption of a convention – or a treaty – is the most direct way for states to create rights and
obligations under international law and it is the only instrument available to two or more states that want
to enter into a formal legal relationship. The most important legal sources within a given area of
international law are therefore often treaty based. The legal basis of treaty-based obligations is state
consent and a treaty only creates legal obligations for the consenting states. The effect of a treaty is
expressed in the principle pacta sunt servanda according to which states are bound to honor their treaty-
based obligations. A treaty concluded by two states – a bilateral treaty – often governs a particular issue
of mutual interest, such as the construction of joint infrastructure, and resembles a contract. Treaties
between larger groups of states – multilateral treaties – often have general application and possess law-
making features. When a treaty establishes an international organization, it is referred to as a constituent
treaty. Some constituent treaties create international organizations with the competence to adopt legally
binding instruments. A state that becomes party to the constituent treaty consents to be bound by any
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