International Public Law
Foundations
Public International Law deals with legal issues of concern to more than one state.
3 (main) differences between international and national law:
Separation of powers (legislative, executive, and judicial branch): there is no such separation
of powers in international law, as there is within the national legal system.
Horizontal vs vertical relationship between actors: international law occurs between states,
while national law occurs between citizen and state.
Enforcement mechanism: in international law, there is no effective enforcement mechanism.
The parties that agree to conventions etc. also have to check themselves.
Shortly: there is no overarching authority in international law.
Brief History: international society of nation states
The international legal system we recognise today is generally tied to the emergence and
consolidation of nation states in Europe: The ‘birth’ of the international state system is usually traced
to the 1648 Peace of Westphalia that brought an end to the Thirty Years War on continental Europe.
Idea was to reduce the powers of transnational forces, like empire and religion, and instead
compartmentalise territory and individuals into sovereign states.
In the 19th century the debate between positivism and natural law became more significant:
Positivism: beliefs that international law is what the written rules are and what agreements
between states exists.
Natural law: we derive certain rights and obligations even without necessarily having certain
rules in that field – can be derived from the power of God.
Especially in the western part in the world, the positivism approach became the foundation of
international law. From the mid-19th century, we see the emergence of international treaties and
organisation that set up rules in international law in writing.
Important evolutions for international law occurred during the 20th to 21st century:
Interwar period: The League of Nations was founded.
After the 2nd World War: The League of Nation transformed to the UN, a growth of
international organisations and the emergence of international common law courts
(Nuremberg and Tokyo tribunals).
o An important development in international law post-WWII is the process of
decolonisation.
The international society we have today, is first and foremost a society of individual nation states.
International Law of coexistence and of cooperation
,Only when an issue is of interest to more than one national sovereign, international law will enter the
picture. The scope of international law is thereby determined by the inadequacy of national law, but
the content of international law must be found in international law.
Two structures of international law arise from two different ways an issue becomes of interest to
more than one state:
When two or more states have an inherent interest in in issue: the international law of
coexistence (or ‘general international law’).
o International law of coexistence can be binding to states. It contains issues which are
inherently of interest to more than one state and require to separate the powers of
the sovereign states and thereby uphold peaceful coexistence.
o Here one will find the classic topics of international law, such as delimitation of and
title to territory, the criteria for statehood and recognition of new states and
governments, jurisdiction and immunity, the use of force, the conduct of armed
hostilities and neutrality in times of armed conflict.
When states have agreed in a treaty to make an issue that otherwise could have dealt with
under national law into one of an international character: the international law of
cooperation.
o Unlike the international law of coexistence, the international law of cooperation is
‘optional’: states are free to turn a matter previously dealt with by national law, into
a matter of international law.
Important notions
Unlike in domestic law legal systems, there is neither a legislative nor an executive branch in the
international legal system.
Although a number of international courts have been established, there is no mandatory and
well-established procedure for the settlement of legal disputes.
It is primarily up to the legal subjects themselves to create, interpret and enforce the law.
The current configuration of the international legal system was not motivated by a desire to create a
more just and equitable world or to facilitate the realisation of wider ‘community’ goals, but instead
to find an organising principle that could uphold international order and stability for world affairs.
Important notions that explain how international law works:
Sovereignty: States have supreme power over their territory and may not be subject to the
jurisdiction of other states.
Consent: States must consent to be bound by international rules.
Each state has 1 formal vote which counts equally.
Why states obey international law
Desire for order and predictability over chaos.
Consent and obedience: sovereign equality of states.
Legitimacy.
Enforcement mechanisms.
,Relation between International and National Law
The most important principle of International Law is that states cannot refer to their own rules of
laws as an excuse not to comply with obligations in the international legal order (to be found in e.g.
art. 13 Declaration on Rights and Duties of States, art. 27 Vienna Convention on Law and Treaties and
art. 32 ILC Articles on State Responsibility). International law thus asserts its supremacy over national
law.
Art. 13, Declaration on Rights and Duties of States
‘Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions of its constitution or its laws as an
excuse for failure to perform this duty.’
The effect of international law in domestic legal order is determined by domestic – constitutional –
law. The main two approaches are the dualist and the monist approach:
Monism: International law automatically part of domestic legal order (incorporation).
o International law and national law essentially form a single legal order or a set of
mutually intertwined legal orders to be presumed to be coherent.
Dualism: International law needs to be transformed into domestic law first (transformation).
o International law and national law are two separate legal systems that operate
independently. Neither of the two legal systems creates rules for the other and if
international law is applied domestically, it is because it is ‘translated’ into the
national legal system. Incorporation into the national legal order usually takes one of
two forms:
By a short statue with the treaty as an annex; or
Through a more thorough reformulation and interpretation in new – or an
amendment to existing – legislation.
The relationship between the two systems is more complex and diverse, which is referred to as
pluralism.
Validity and primacy in NL
International law is valid and applicable in the domestic legal order. Domestic law must be applied in
conformity with all international legal obligations of the Netherlands. It cannot lead to contra legem
interpretation of domestic law.
Art. 93 Gw: Only provisions of treaties and of decisions by international organisations which
are binding on all persons by virtue of their contents can be invoked directly.
Art. 94 Gw: Dutch law is not applicable if such application conflicts with provisions or treaties
or of decisions by international organisations that are binding on all persons.
Sources
In international law, the lack of a universal legislature and court with compulsory jurisdiction often
makes uncovering the law more different. There is no constitution nor any legislative body for
, international law, through which international applies. International law is a decentralised legal
system: legal obligations may derive from more than one source.
The classical attempt at listing the sources of international law, can be found in art. 38 of the ICJ
Statute (ICJ = International Court of Justice), which distinguishes four types of international sources:
Article 38 Statute of the International Court of Justice
1. 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 civilised nations;
(d) subject to the provision of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various countries, as subsidiary means for the determination of rules of
law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
Art. 38 distinguished between primary and secondary sources of law:
Primary sources: constituted by conventions (treaties), customary law and general principles.
These are law creating because they create (new) rights and obligations .
Secondary sources: judicial decisions and scholarly contributions. They are law identifying
since they merely apply or clarify the content of existing law.
Hierarchy
In international law, the conventions, customer legal rules, and general principles of law all have an
equal status: there is no clear hierarchy as within national law (where constitution law carries more
weight than legislation and administrative regulation). Usually, conflicts between sources are
therefore not resolved by granting one of the sources a higher normative value than the other but by
determining which of the conflicting norms prevails in the particular case (e.g., treaty-based rules
normally have priority over customary international law, see under ‘Custom and treaty law’).
There are a couple of exceptions to this main rule:
Peremptory norms (jus cogens): a jus cogens rule expresses a fundamental value and it
therefore cannot be delegated from by the states (see art. 53 VCLT).
o States cannot contract out of jus cogens norms or otherwise limit these kinds of
norms.
o The ICJ had found as an example that the prohibition of genocide and the prohibition
against torture are jus cogens norms.
Erga omnes obligations: most obligations in International Law are usually just owed to a
state that is the immediate beneficiary. Erga omnes obligations however are owed to other
states as well. Other states may also invoke a breach of an erga omnes obligation.
