Principles and foundations of international law
Tutorial 1: introduction
>>>> Assignment:
Please reflect on the following question in light of the reading material and the content of the lectures.
The Peace of Westphalia affirmed the idea that all states, powerful and weak alike, are sovereign and
co-equal. Is that an accurate description of the state of international law today?
Under the terms of the peace settlement, a number of countries received territories or were confirmed
in their sovereignty over territories. Westphalian sovereignty, or state sovereignty, is a principle in
international law that each state has exclusive sovereignty over its territory. The principle underlies
the modern international system of sovereign states and according to the idea, every state, no matter
how large or small, has an equal right to sovereignty. So, the Peace of Westphalia is considered to be
the beginning of the modern international system, in which external powers should avoid interfering
in another country's domestic affairs (based on the principle of non-intervention and the legal equality
of states).
However, it has faced recent challenges from advocates of humanitarian intervention. It is also stated
that internationalism and globalization conflict with Westphalian sovereignty. So, it can no longer be
stated that Westphalian sovereignty is an accurate description of the state of international law today.
In the context of humanitarian intervention, states use military force against other states to stop
human rights violations in the latter. This infringes on the sovereignty of that state, because another
state is, as it were, interfering in its national affairs. Humanitarian intervention highlights the tension
between the principle of state sovereignty – a defining pillar of the UN system and international law –
and evolving international norms related to human rights and the use of force.
Within the framework of internationalism, which includes the creation of international
institutions, cooperation takes place between different states. However, internationalism is still based
on the existence of sovereign states. Its aim is to create some formal and informal interdependence
between countries, with some limited supranational powers given to international organizations
controlled by those nations via intergovernmental treaties and institutions. So, in a way, states do cede
part of their sovereignty to the international organizations because they are allowed to make certain
decisions that affect the national affairs of the states.
Even the conception of what a state is, some would argue that it is very Eurocentric. So, international
law and human rights are based on European/Western values. Some states would argue that universal
human rights don’t exist, because the values reflected in the human rights differ per state. So, some
values are more predominant in some states than in other states and this rebuts the notion that states
are equal.
- The best way to uphold the idea of universal human rights is to make the right to education
(and socio-economic rights) a universal human right in order to give third world countries a
seat at the table and the opportunity to think about what might be best for them.
International law seems to be horizontal, but there are also vertical features like the Security Council
with five permanent members (the winners of World War II), who have the power of veto. Their
decisions (and the possibility to veto decisions) also affect other states, because they have the power
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,of veto and other states don’t have that power. The permanent members were supposed to uphold
the stability, but they make it impossible for the rest of the states to vote against cases involving those
Big 5. If you were to take away the veto power, the UN would collapse, so it is an inherently unequal
system. So, the reality is really different.
Also, in international financial organizations developing countries are disadvantaged, because the
amount of money is a decisive factor in allocating the number of votes to states. The more money a
state has, the more power it holds.
>>>> Notes:
Examination:
Bring a dictionary and don’t write in the Blackstone book (links to an article are allowed but links to
other cases aren’t allowed).
IRAC-method:
- I for issue spotting: identifying the legal issues à what are the parties disputing about?
- R for rule: determining what the applicable rule is à what article would apply? What should
be the applicable law to resolve the dispute?
- A for analysis/application: once you have identified the problem, you have to apply the general
rule to the specific case.
- C for conclusion: conclude and sum up what you have analyzed.
Sovereign states:
All states enjoy sovereign equality. They have equal rights and duties and are equal members of the
international community, notwithstanding differences of an economic, social, political or other nature.
Would it be right if states intervened in other states if they think the latter states are failed states?
- This would breach the principle of non-intervention (art. 2 and 51 UN Charter). In reality they
justify the intervention with the claim that they want to protect the citizens in the failed states.
o A Security Council resolution would be one of the ways to justify an intervention.
- The moment you acknowledge that a state can claim to be the protector of the people in
another state, powerplay would be prominent in that interaction.
How does the principle of common responsibility affect the sovereignty of states?
- The idea is that everyone has a common responsibility, but there are different ways to
implement that responsibility (based on their financial and technical capabilities).
o Many of the environmental treaties work on this principle: the states that emitted lots of
CO2 will have to cut their future emission.
International law – oppression:
International law prohibited slavery but is was also international law that facilitated it. It’s an ongoing
theme that international law can be a tool for oppression.
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, Tutorial 2: sources of international law (custom and treaties)
>>>> Assignment:
Hypothetical: The Republic of Alpha and the Kingdom of Beta are neighbouring states that together
occupy the territory of a large island in the Emerald Ocean. This island is home of the kuolu bear, a
cute herbivore that inhabits the vast eucalypt woodlands of both Alpha and Beta. Outside these two
countries, the kuolu bear is only found in the tiny island State of Cyclopedia, which is situated 15
kilometres off the coast of Alpha.
Around 15 years ago the number of kuolu bears suddenly began to steadily decrease in both Alpha and
Beta. The wood of eucalyptus trees was in high demand, and deforestation endangered the habitat of
the kuolus. Moreover, poachers had started to hunt the fluffy bears for their precious fur. In order to
save the kuolu bear population from extinction, Alpha and Beta concluded the Save the Kuolu Bear
Treaty (‘SKB Treaty’) which entered into force in 2006.
The SKB Treaty includes the following provisions:
Article 2: Each State Party shall cease all exploitation of natural resources, including kuolu bears, in the
eucalypt woodland on its territory.
Article 3: 1. Each State Party shall declare eucalypt woodland on its territory a ‘National Nature Reserve’.
2. Each State party shall prohibit and prevent all economic activity in eucalypt woodland on its
territory.
Article 21: Disputes arising out of the interpretation or application of the Treaty shall lie within the
compulsory jurisdiction of the International Court of Justice and may accordingly be brought
before the Court by an application made by any party to the dispute being a Party to the Treaty.
Article 36: In the year 2030 the States party to this Treaty will assess whether protection of the kuolu bear
in their territories is still necessary to prevent the extinction of the species. The Treaty may not
be denounced before that time.
The Kingdom of Beta has issued an unconditional declaration under the optional clause of Article 36(2)
of the Statute of the International Court of Justice. Whereas the Republic of Alpha has not accepted
the Court’s jurisdiction under Article 36(2) ICJ Statute, the State of Cyclopedia has issued such an
optional clause declaration but has made a reservation in relation to disputes relating to natural
resources.
In July 2020 the Kingdom of Beta announces it wants to withdraw from the SKB Treaty. It argues that
the protective measures have caused an exponential increase in the number of kuolu bears, and that
in some rural communities the animal is now considered a pest. Due to these changed circumstances,
it argues, protection is no longer necessary; on the contrary, in some areas the animal needs to be
contained. Moreover, Beta argues that the economic depression that affects the country forces it to
allow some economic activity in the woodlands. Cutting of eucalyptus trees is necessary to safeguard
the population of Beta from the grave and imminent peril of starvation.
Explain whether Beta can, on the basis of the advanced arguments, terminate the treaty.
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