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Samenvatting Public International Law literatuur, hoorcollege, werkgroep, jurisprudentie Rechtsgeleerdheid Universiteit Leiden ()

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Universiteit Leiden (UL)

Ik heb het vak PIL in een keer afgerond met een 6. Daarvoor heb ik deze samenvatting van de literatuur, hoorcolleges, werkgroepen en jurisprudentie gebruikt. Deze samenvatting bevat geen antwoorden op de werkgroepopdrachten.

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Kleine samenvatting PIL

Week 1
How to answer (IRAC)
- Questions with 2
legal issues  2
separate IRAC’s
- Issue: “Following the
[facts], the question
of whether [legal
question] arises.”
- Rules:
o General rule
of law
(treaty,
custom) and
exception/cr
iteria (case
law);
o Explain Other Primary Materials (for reference purposes):
what’s in - 1945 Charter of the United Nations (EIL 2019, p. 105)
the rules; - 1945 Statute of the International Court of Justice (EIL
- Application: 2019, p. 115)
o Apply the - 1960 UN General Assembly Resolution 1514 (XV) (EIL
rules in the 2019, p. 121)
same order
as you Sources of international law
presented 38 of the ICJ Statute:
the rules; - International conventions;
o Use the - International custom law;
- The general principles of law;
language of
- Judicial decisions.
the law;
The first three sources are law creating because they create new
o Mention the
rights and obligations whereas the latter two are law identifying
relevant
since they merely apply or clarify the content of existing law.
facts;
- Conclusion:
Treaties
o Repetition;
Treaties/conventions dominate and are the most significant source
o “A strong
of international law. Conventions are the most direct way and it is
argument
the only instrument available to two of more states that want to
can be made
enter into a formal legal relationship. The legal basis of treaty-
that
based obligations is state consent and a treaty only creates legal
[argument].
obligations for the consenting states. The effect of a treaty is
”
expressed in the principle pacta sunt servanda. Treaties come in
o “If it is
many forms and the title is immaterial.
proven that
[relevant When a treaty establishes an international organization it is
facts], then referred to as a constituent treaty. As state that becomes party to
[legal the constituent treaty consents to be bound by any subsequent
consequenc legal instruments adopted pursuant thereto.
es of that
fact]; Customary international law
o “Following
1 the law of
[law],
[conclusion].

, • State practice: t There must me a consistent repetition of a particular behaviour, meaning
that for a considerable period of time states have acted in a certain (identical) manner when
confronted with the same facts. All state acts may be taken in consideration. Verbal acts
must be public, and internal documents and memoranda do not qualify as state practice.
o Consistency
o Duration
o Generality
• Opinio iuris: The acceptance of a given practice as low. This is the subjective/psychological
element. This is used to distinct between state practice out of habit/convenience/politeness
and state practice that is done out of a sense of legal obligation
A customary rule binds all states, unless a state persistently objects.

The relationship between custom and treaty law
When a treaty codifies customary international law, the parties to the treaty will be bound by the
treaty as well as customary international law while non-parties are only bound by the latter
(Nicaragua). When a treaty contains elements of both codification of existing customary law and
progressive developments, non-parties are only bound by the former. If, however, state practice
develops along the lines of the progressive parts, the latter may also become binding as customary
international law on the states that are non-parties to the treaty. When the content of a treaty-based
and custom-based obligation are identical, the two sources will complement and reinforce each
other. If the content of the obligations is not exactly identical, a potential conflict can often be
avoided through interpretation. If one of the two has a peremptory/jus cogens character, it prevails.
The treaty normally prevails over custom between the parties to the treaty. In many instances, the
conflict will be governed by the principle of lex posterior whereby that which is later in time prevails.
It there is a conflict between a norm of general and one of more detailed character, the lex specialis
principle stipulates that the latter prevails.

General principles
- The most relevant general principle is equity.
- There is also a general principle of good faith, that stipulates that states must act honestly in
the fulfilment of their international obligations.
- Another is pacta sunt servanda.
- No harm principle;
- The principle of due diligence: a state must seek to prevent activities on its own territory
from causing significant damage in another state.
- The principle of res judicata: a decision is final and binding on the parties.

Judicial decisions
The ICJ’s decisions are only binding on the parties to the case (38 lid 1 sub d jo. 59 Statute). Judicial
decisions may carry substantial interpretative weight. The ICJ is not bound by its earlier decisions but
it strives to maintain judicial consistency and usually makes reference to its case law.

Unilateral statements
Unilateral statements by state representatives (heads of state, heads of government and ministers of
foreign affairs) can create obligations under international law. A unilateral declaration should only be
considered binding if it is stated in clear and specific terms. A restrictive interpretation is called for
when states make statements by which their freedom of action is to be limited (ICJ in Nuclear Tests
Cases).

Hierarchy

2

,The international legal system is by and large a horizontal legal order. Apart from the distinction
between primary and secondary sources in 38 ICJ Statute, all legal sources generally carry the same
normative weight. Conflicts between sources are usually solved by determining which norm prevails
in the particular case. There are at least three exceptions to the general presumption of normative
equality:
1. Peremptory norms (jus cogens) are superior to other norms (example: prohibition against
genocide).
A jus cogens norm is one that is accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character. The ILC has stated that the
concept of jus cogens refers to those substantive rules of conduct that prohibit what has come to be
seen as intolerable because of the threat it presents to the survival of States and their peoples and
the most basic human values.
2. Obligations erga omnes are normatively superior in the sense that they are not merely owed
to another state but to the international community as a whole (communitarian norms)
(example: prohibition against genocide).
Jus cogens and erga omnes are very much the same, but they serve different purposes. While the
former category refers to substantive obligations that cannot be derogated from, the latter is a
procedural designation of a set of obligations that all states can invoke.
3. Obligations under the UN Charter prevail if they conflict with obligations under any other
international agreement (103 Charter). The practical effect of 103 Charter is that states must
comply with the Council’s resolutions even if it means that they thereby violate other
international legal commitments. The Council cannot oblige states to disregard norms of a
jus cogens.

Soft law
Soft law instruments are not in themselves legally binding under international law and they do not
constitute independent sources of law. Soft law documents may be evidence of opinio juris.

Law of treaties
A treaty is an international agreement governed by international law concluded by two or more
international subjects with treaty-making capacity. Distinction:
- Bilateral;
- Unilateral.

In the case an international organization is a party to a treaty, it will be governed by the 1986 Vienna
Convention of the Law of Treaties between International Organizations or between States and
International Organizations.

The legal basis of a treaty obligation is state consent (34 VCLT). A treaty in force is binding upon the
parties to it and must be performed by them in good faith (26 VCLT). A State party may not invoke its
national laws as justification for a failure to perform a treaty-based obligation (27 VCLT). Oral
agreements are also treaties, but the VCLT does not apply (3 VCLT). Treaties and international
agreements entered into by a member of the UN shall be registered with the UN Secretariat (102 UN
Charter).

Authority to conclude a treaty
All states possess the legal capacity to conclude treaties, but not all representatives of a state are
considered competent to conclude a treaty on behalf of a state (7 VCLT). In practical terms, a full
power is a document that authorizes a state representative to negotiate and conclude a treaty on
behalf of the state. Not all state representatives need to produce full powers. By virtue of their
functions heads of state, heads of government and ministers of foreign affairs may perform all acts
3

, that relate to the conclusion of a treaty on behalf of a state without presenting full powers. A more
limited authority to represent a home state rests on heads of diplomatic missions and
representatives accredited by a state to an international conference or an internal organization.
Depending on the circumstances, these individuals may participate in the adoption of a text of a
treaty without full powers. A state may not invoke the fact that its consent to be bound by a treaty
had been expressed in violation of its national laws as invalidating its consent unless the violation of
national law was manifest and concerned a national rule of fundamental importance (46 lid 1 VCLT).
The violation of internal law must be manifest in the sense that it is objectively evident to any state
conducting itself in the matter in accordance with normal practice and good faith (46 lid 2 VCLT).

Depending on the circumstances, international organizations also have treaty-making powers.

Consent
In order for a state to become legally bound by a treaty, it must consent to it. Consent may be
expressed by (11 VCLT):
- Signature;
- Exchange of the instruments;
- Ratification;
- Acceptance;
- Approval;
- Accession;
- By any other means if so agreed.

Today there is a widespread practice of expressing to consent by signature (definitive signature). In
the case of consent by accession a state gives its consent to be bound by a treaty already negotiated
and signed by other states, often after the treaty had entered into force, in the following
cirumstances:
a. If the treaty provides for it;
b. If it is otherwise established that the negotiating parties were agreed that it should be
possible; or
c. If all the parties have subsequently agreed that a state may express its consent by such
means.

An important distinction is that between signature and ratification. In some circumstances consent
to be bound by a treaty requires not only a signature by the potential state party in question, but also
a subsequent confirmation by the state that its intents to be bound by the treaty. The purpose of
ratification is to allow the signing state a period of time before it gives its binding consent. When
subsequent ratification is required the signature is not confirmation that the state intends to be
bound by the treaty. The mere signing of a treaty that must be ratified triggers an obligation to
refrain from acts that would defeat the object and purpose of the treaty. Ratification is required if
(14 VCLT):
a. It is specified in the treaty itself;
b. It is otherwise established that the negotiating parties agreed that it was needed;
c. The representative who signed the treaty did so subject to ratification; or
d. It appeared from the full powers of the representative of it was expressed during the
negotiation that that was the intention of the state.

Entry into force
A treaty enters into force in such manner and upon such date as it may provide or as the negotiating
states may agree (24 VCLT). If the treaty does not specify when it enters into force, it will generally
enter into force as soon as consent has been established for all the negotiating states. A treaty that
has not yet entered into force cannot create any legal obligations for the contracting states. But good
4

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Samenvatting Public International Law literatuur, hoorcollege, werkgroep, jurisprudentie Rechtsgeleerdheid Universiteit Leiden ()

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