Samenvatting
Summary Public international law
- Instelling
- Haagse Hogeschool (HHS)
Summary of relevant material for the course exam
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SAMENVATTING PUBLIC INTERNATIONAL LAWLECTURE 1
WHAT IS PUBLIC INTERNATIONAL LAW?
> International law is the universal system of rules and principles concerning relations between sovereign
States, and relations between States and international organisations, such as the United Nations (or Civil
society organizations, such as Greenpeace).
> ICJ
What is a State?
> A recognised and independent country or nation (the means of rule over a defined or "sovereign"
territory).
Emergence of states: peace treaty of Westphalia (1648): recognition of:
> sovereignty
> territorial integrity, and
> equality of states as independent members of an international system.
The concept of International Law
> The term "international law" was first used by Jeremy Bentham in 1789: Introduction to the Principles of
Morals and legislation.
> Westlake, 1894:“International law is the body of rules prevailing between states”
> Hall, 1890: “Int. law consists in certain rules of conduct which modern civilised States regard as being
binding on them in their relations with one another …”
> Oppenheim, 1905: “States solely and exclusively are the subjects of international law
>> There is no single overarching authority in International Law.
Traditional view of International Law
> International law = a system of rules governing relations between nation states
> Focus on exclusive role of States
> IL owes its validity to: “The consent of equal sovereign states expressed in custom & treaty”
> “International law governs relations between independent States. The rules of law binding upon States
therefore emanate from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law…. Restrictions upon the independence of States cannot therefore be
presumed”(S.S.LotusCase, PCIJ, 1927).
( Bottomline of Lotus case: one (sovereign) state may not exercise jurisdiction in the territory of another
(sovereign) state..)
> System of rules that confers (provides) rights and imposes obligations exclusively upon sovereign states. IL
owes its validity to the consent of states.
> Traditional view prevailing until mid-20 th century
Modern view of International Law
> International law "consists of rules and principles of general application dealing with the conduct of states
and of international organizations and their relations inter se (between them) as well as with some of their
relations with persons, whether natural or juridical”.
> besides States, many more actors play a role in IL
> many C20th developments made traditional view clearly inadequate
> other actors in International Law:
- League of Nations after WWI; United Nations after WWII
- Post WWII supranational organisations : the EU
, - NGOs, transnational companies, individuals & groups become actors on the international plane ( and
also: The Red Cross, The Holy See (the jurisdiction of the catholic church in Rome), The knights of
Malta (Western Christian military order)).
> All leading to: A decline of influence of the sovereign state.
Int. Law still predominantly made & implemented by States
> Int. organisations largely dependent upon states & willingness of their governments to support them
> only states can be members of the UN (only states can call upon the UN Security Council if there is a threat
to int. peace and security)
> only states may appear in contentious (controversial) proceedings before ICJ
THE HISTORICAL DEVELOPMENT OF INT. LAW
origins of Int. Law: middle ages & renaissance
> International community
> The Church (canon law)
> Natural law
> The collapse of the Byzantine Empire
> Great geographical discoveries
> The rise of nation state
Peace of Westphalia (Treaties of Westphalia in Munster& Osnabruck October 24, 1648)
> Ended the 30 year’s war in the Holy Roman Empire
> Ended the 80 year’s war between Spain and the Dutch Republic
> Legacy: the precedent (example of, guide) of peace established by diplomatic congress and a new system
of political order in Europe based upon the concept of co-existing sovereign states (principle of territorial
integrity)
Modern International Law
> The rise of sovereign nation States marks the beginning of modern international relations and modern
international law.
> Expanding interactions between States >> expanding international law.
> The international legal system defining rights and obligations of States.
Hugo Grotius 1583-1645: Founding father of Modern Int. Law
> Diplomat, lawyer, magistrate, scholar, and teacher.
> In 1634 Grotius was appointed Ambassador of Sweden to France. He helped to negotiate a treaty for
ending the Thirty Years War
> As one of the natural law pioneering theorists he defined natural law as a perceptive judgement in which
things are good or bad by their own nature.
> Famous not only for his theories of natural law but for his books on international law of war and issues of
peace and justice
> I n 1609 Grotius published Mare Liberum (The Freedom of the Seas): the freedom of the seas is a key
aspect in the communication between nations and peoples and that the high seas are common property
thus: no state should be permitted to monopolize control over the seas and oceans.
> One of the first modern theorists to systematically propose the existence of norms (standard) in the
conduct of relations between states.
> 1625, De Jure Belli ac Pacis: questions of jus ad bellum and jus in bellum. War was considered a ‘necessary
evil’; Grotius discussed problems related to war in order for the conduct of war to be regulated.
> Law should be divided into what is divine (godly) and what is human. Methods for peaceful settlement and
war as a method of protecting rights and punishing wrongs are discussed.
,The Congress of Vienna (1814-1815)
> Attempted to reconstruct Europe after the crash of the French Revolution (+ Napoleons downfall).
> Predominantly a war conference but it established peace and a sort of an institutional framework (Concert
of Europe) in which the great powers agreed among themselves and legislated for the rest of Europe which
lasted for many years.
> Adoption of rules concerning the rank of ambassadors (diplomatic precedence), navigation on rivers, and
slave trade.
The Hague Peace Conferences (1899 & 1907)
> Lead to many Conventions:
- Law and Customs of War on Land: July 29, 1899
- Adaptation to Marine Warfare of Principles of Geneva Convention of 1864: July 29, 1899
- Prohibiting Launching of Projectiles and Explosives from Balloons: July 29, 1899
- Creation of Permanent Court of Arbitration.
- Pacific Settlement of International Disputes: October 18, 1907;
- Laws and Customs of War on Land: October 18, 1907
The League of Nations (1919-1946)
> Created in an effort to prevent conflicts on a mass scale such as the First World War (1914-1918).
> Task: to ensure that war never broke out again
> How was The League of Nations organized?
> Weaknesses& Strengths
The United Nations (1945-now)
> Successor of League of Nations
> The result of the determination to set up a more efficient international organization to safeguard global
peace and security.
> The Charter of the United Nations was signed in San Francisco in June and entered into force on October
24, 1945.
> Furthermore: codification and progressive development of international law (Int. Law Commission)
LECTURE 2: PEACEFUL SETTLEMENT OF DISPUTES
INTERNATIONAL COURTS AND TRIBUNALS
For many centuries:
> War has not been the only, but the ultimate way to settle international disputes.
> And because States were for a long time free to resort to the use of force, they were entitled to obtain
through war the settlement of any dispute in the form of a valid peace treaty.
> Coercion was not illegal.
> Things have dramatically changed with the “outlawry” of war
> League of Nations
Introduction:
> It is considered difficult to hold sovereign states to account before a court. This is still reflected in the idea
that states enjoy sovereign immunities in domestic law > immunity from persecution: States cannot be held
to account in the courts of another state for their official acts.
> State’s acts can be adjudicated before international tribunals, however States have been and are still
reluctant to subject themselves to the jurisdiction of international tribunals. States tend to prefer to settle
, their disputes by political means. This chapter will discuss dispute settlement by political means, arbitration
and the ICJ.
United Nations Charter: the principle settlement of disputes
> Article 2(3) of the Charter of the United Nations provides that: ”All Members shall settle their international
disputes by peaceful means in such a manner that international peace and security, and justice, are not
endangered”.
> Article 2(4) of the Charter of the United Nations provides that: “All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.
> UN Article 33: “The parties to any dispute, the continuance of which is likely to endanger the maintenance
of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice”.
>> distinction between diplomatic means and legal means of dispute settlement.
What is a dispute?
> The Permanent Court of International Justice (PCIJ) described a dispute as: “a disagreement over a point of
law or fact, a conflict of legal views or of interests between two persons.
Methods of dispute settlement
Diplomatic methods:
> Negotiation
> Inquiry (onderzoek)
> Mediation
> Conciliation (verzoening)
Judicial methods:
> International Court of Justice (ICJ)
> Tribunal of the Law of the Sea
> Other Courts and tribunals
> other methods: settlement by regional organizations, arbitration.
Negotiation
> Simplest and most utilized method
> Discussions between interested parties with a view of reconciling divergent positions
> The parties are directly engaged
> Successful negotiation requires a certain degree of mutual goodwill, flexibility and sensitivity.
Settlement by the UN – Security Council
> The Security Council (responsible for the maintenance of international peace and security) has the right to
determine if a dispute or situation is likely to endanger international peace and security (Art. 34).
> The Security Council can call upon the disputing parties to settle their dispute.
> The SC may also recommend the terms of settlement if the disputing parties so request (Art. 38).
> The SC can employ a variety of diplomatic techniques to resolve international disputes (call to negotiate;
provide ‘good offices’ (= it can offer itself as a channel for communications); mediate in disputes).
Settlement by the UN – Secretary General
> The UN Secretary General may alert the Security Council to situations which, in his judgment, are likely to
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