Samenvatting van hoofdstukken van het boek International Law van Anders Henriksen. Behapbare samenvatting die de belangrijkste zaken voor het tentamen eruit haalt.
Week 1: Introduction and revision
Chapter 2 (Sources of international law)
2.2 Article 38 of the Statute of the ICJ
Art. 38 lists the sources of international law, in hierarchal order:
- International conventions
- International customary law
- General principles of law
- Judicial decisions
2.3 Conventions (treaties) as a legal resource
The legal basis for treaty-based obligations is consent and a treaty only creates legal obligations for
consenting states, consent is decisive.
2.4 Custom as a source of international law
Customary law consists of an objective element (state practice) and subjective element (opinion
juris). A customary rule binds all states and can also develop and apply only to 2 states or regionally
between a group of states.
- Objective element (state practice): consistent repetition of a particular behaviour.
o Consistency: the practice is reasonably uniform
o Duration: generally takes a long time but the passage of a short period of time is not
in itself a bar to the formation of customary law
o Generality: the participation must be widespread, majority of states.
- Subjective element (opinion juris): the belief that the practice is legally binding (particularly
relevant when a practice may have motivations unrelated to law).
2.9 Hierarchy of sources
Jus cogens: norms that are of superior value than other norms. It is a norm that is accepted and
recognized by the international community as a norm from which no derogation is permitted.
Erga omnes: these norms are normatively superior in the sense that they are not merely owed to
another state but the international community as a whole. A breach of an erga omnes obligation can
be invoked by any state.
Obligations under the UN-charter: states have to carry out resolutions of the Security Council, but no
jus cogens or erga omnes obligations can be breached.
Chapter 3 (Law of treaties)
3.2 Treaty as a concept under international law
A treaty is an international agreement governed by international law concluded by two or more
international subjects with treaty making capacity. Bilateral and multilateral treaties.
3.5 Consent to be bound
Art. 11 VLCT states that consent can be expressed by a signature, an exchange of the instruments,
ratification, acceptance, approval or accession.
3.8 Reservations
A state may take into account national political, social or cultural attitudes by becoming a party to a
multilateral treaty without accepting all of its provisions and obligations. Reservations are generally
acceptable if they are compatible with the object and purpose of the treaty in question. Reservations
are not allowed when the treaty expressly states that it is not permitted. Secondly, some treaties
,allow only certain reservations to be made. Thirdly, reservation cannot violate the objective and
purpose of the treaty.
Chapter 4 (Actors in the international legal system)
4.2 States
4.2.2 Recognition
There are two approaches to recognition of states:
- Declaratory: the creation of states is primarily a matter of law and the fulfilment of legal
criteria. As soon as certain criteria are fulfilled it will be a state
- Constitutive: a state is a state when it is recognized by other states.
4.2.3 The Montevideo criteria
Art. 1 of the Montevideo convention lists criteria for states:
- A permanent population: someone has made the territory its home
- Defined territory: no minimum size, the entities boundaries do not have to be precisely
demarcated and settled. As long as it controls a consistent area of undisputed territory.
- A government: someone must exercise control over the territory and be able to run its
affairs. The decisive issue is effectiveness. Is the government able to exercise authority, does
not have to be the entire territory.
- A capacity to enter into relations with other states: an entity must have the ability to act
without legal interference from other states.
4.2.5 The right to self determination (Chagos archipelago)
All peoples have a right to freely determine their political statues and pursue their economic, social
and cultural development. This became important with decolonization and the 1960 declaration on
granting the independence to colonial countries and peoples.
The right to self-determination is normally fulfilled by internal self-determination – autonomy –
according to which a people can pursue their development within the framework of an existing state.
A right to external self-determination – with the option of seceding – arises only in the most extreme
cases (conquered, last resort when no meaningful internal self-determination).
4.2.6 Acquisition of new territory
Cession: buying new land
Accretion: nature makes new land.
Occupation: Acquiring land that does not belong to anyone
Prescription: obtains a title to territory previously under the sovereignty of another state. Consent by
the other state is implied and the prescription has to be peaceful.
Chapter 7 (State responsibility)
7.2 The basic principles of state responsibility
Art. 1 of RSIWA states that every internationally wrongful act of a state entails the international
responsibility of that state. Art. 2 RSIWA stipulates 2 elements: 1) conduct must be a breach of an
obligation 2) that conduct must be attributable to a state.
International organizations do not fall within the scope of RSIWA.
7.3 Attribution of conduct
7.3.2 Attribution for acts performed by the state and its organs
Art. 4 RSIWA, all conduct of state organs is considered an act of the state regardless of whether the
organ in question exercises legislative, judicial or any other functions. Thus, all three branches of
government may implicate the responsibility of a state. Attribution is also triggered by low-level state
officials as long as they act in official capacity.
, 7.3.3 Attribution for acts performed by organs exercising governmental authority
Art. 5 RSIWA concerns a state’s responsibility for acts of individuals and entities that exercise
authority normally exercised by a state even though they do not have an official status. The conduct
of individuals and entities empowered to exercise governmental authority is attributable to the state
whenever they act in that capacity (state cannot privatize or outsource functions).
7.3.4 Attribution for acts by organs ‘on loan’ from another state
Art. 6 RSIWA, applies to situations where a state places on of its organs at the disposal of another
state. Requires that the organ is placed under the authority or structure of the receiving state and it
does not retain autonomy.
7.3.5 Responsibility for acts ultra vires
A state remains responsible for conduct performed by its organs and official in cases where the organ
or official acted contrary to orders and instruction or in excess of authority, art. 7 RSIWA.
7.3.6 Attribution for acts performed by private individuals
Art. 8 RSIWA specifies that a state is only responsible for the conduct of a group or a group of
persons if they are in fact acting on the instructions of, or under the direction or control of, that state
carrying out the conduct. State responsibility exists in 2 situations:
- Private individuals must be acting under the instructions or orders of the state
- Private individuals must act under the direction or control of the state: effective control with
respect to the operations in which the alleged violation occurred.
7.5 Circumstances precluding wrongfulness
Chapter 5 of RSIWA gives these circumstances: consent, self-defence, lawful countermeasures, force
majeure, distress and necessity.
A state cannot preclude the wrongfulness of any act that violates a jus cogens , art. 26 RSIWA.
Chapter 12 (Peaceful settlement of disputes)
States must settle their disputes by peaceful means, art. 2 (3) UN-Charter, also found in customary
law. States are generally free to decide how they will try to resolve their disputes, the preferred
method is direct negotiations.
12.3 Arbitration
Arbitration is a form of adjudicatory dispute settlement where the parties to a dispute create their
own arbitral tribunal. Arbitration is based on consent of the disputing parties. That has different
forms: 1) state can become a party to a dispute settlement treaty, 2) state becomes a party to a
convention that stipulates that a dispute shall be solved by arbitration. The judgments are binding on
the parties of the dispute
12.4 ICJ
12.4.2 Access to the court in contentious cases
Art. 34 ICJ Statute, only states can be parties to a contentious case before the court. Access concerns
who may bring or be brought before the Court.
12.4.3 Consent to jurisdiction in contentious cases
The Court jurisdiction is conditioned on the consent of the parties to a dispute. Even though parties
may have access to the Court, it can only deal with a dispute if the parties involved have consented
to jurisdiction.
Art. 36 ICJ Statute states that consent can be expressed in numerous ways:
- Explicit agreement: voluntary referrals.
- State consents by becoming party to a dispute settlement treaty where parties agree to
submit disputes to the ICJ or a treaty that specifies that it can be interpreted or applied by
the ICJ.
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