Week 1 – Foundations, Structure, and Sources of International Law
Red = Latijns
Purple = Lawbook
Green = Case Law
Public IL = The rules which govern interaction between states, thus dealing with legal issues
IL = Decentralized legal system for actors such IO’s and Individuals who possess
rights/obligations and are therefore subjects to international law. Found in sources!
Jus Naturale (Natural Law) = Law of individuals based on human nature
Jus Gentium (Law of peoples) = Law of people and nation, inferior to natural law but
perceived to be derived from natural law.
History of International Law
Hugo Grotius, “Freedom of Seas” and “Law of War & Peace”, first major contributor to IL.
Francisco Suarez, Lawgivers
Peace of Westphalia (1648), birth of International Legal System. To reduce powers of
transnational forces (empires, religion) and compartmentalize territory into sovereign states
which have an equal legal importance.
19th century, Positivism, the true source of law is state will. Deriving from this is the
Consensual Theory, states are free to act unless bound by a rule/an agreement.
I->Led to the International Telegraphic Union; Universal Postal Union and 2 Hague
conferences in 1899/1907 which resulted in the Permanent Court of Arbitration to settle
disputes.
League of Nations (1919) after WW1 to maintain world peace. Did not prohibit war but to
solve dispute beforehand. 1920 Permanent Court of International Justice.
Kellog Briand Pact (1928), ratified by 56 states whom promised not to use war to resolve
disputes or conflicts.
United Nations (1945 followed LON), Nuremberg Trials to convict Nazi’s (Law of
Cooperation). Was set-up to maintain international peace.
1. Built on “Westphalian” principle of equality
2. Created IO’s such as Internat. Monetary Fund & Worldbank (Bretton Wood), GATT
3. Created regional organizations such as NATO and European Union
,Structures of International Law
Basis of IL means that there are international obligations, IL has a binding character due to
plurality of sovereign states. A peaceful co-existence means there have to be basic rules
which states don’t question.
A matter becomes of international character either by content or by form.
Content -> Law of Co-existence, first legal structure of IL. Separating power to
uphold peaceful co-existence. (Delimitation of territory, criteria of statehood,
fundamental principles of treaty law ,secondary legal principles on responsibility)
Form -> Law of cooperation, states decide if they want national matter to turn
international, second substantive structure. Legal answers to international problems
such as international humans rights law, environmental law through treaties.
International law is there to uphold order and stability, not about justice.
Issue of enforcing IL
There is no police or judicial system who enforce IL. If breached country can however come
before the International Court of Justice, Permanent Court of Arbitration, International
Tribunal on Law of the Sea, UN Security Council (there to maintain peace not to enforce)
which use IL as a source to deal with the disputes.
States do comply with IL and treaties because:
Reciprocity, there is a long-term benefit for having a well-functioning international
system without constant disputes, wars and countermeasures.
Reputation, states want to seem respectable and law-abiding in Internat. System.
Sources of International Law from which disputes are settled
According to ARTICLE 38 of the ICJ there are primary and secondary sources of IL
1. Primary Sources: Treaties/Conventions, Customary IL, General Principles. Law Create
2. Secondary: Judicial decisions and scholarly contributions. Law Identify
Treaties (AKA Conventions) which are based on “Pacta Sunt Servanda” principle
(Agreements must be kept). Can be bilateral, multilateral, constituent. States are
legally bound by treaties unless stated otherwise. The legal basis of treaties is STATE
CONSENT. (Definition of a treaty in VCLT ARTICLE 2A)
Customary International Law based on everyday interaction of states. CIL binds all
states as they are the unwritten rules of IL unless a state consistently objects. In
order to know if a CIL rule exists, check the ICJ Shelf Case.
o State Practice (Objective element), consistency of behavior, duration and the
generality of practice. (Kan niet opens gek gaan doen)
, o Opinio Juris (Subjective requirement) Belief that the practice is legally even
though it’s not.
General Principles (Gap fillers), 1. Equity (to achieve the most equal), 2. Good Faith
(states must act honest in the fulfilment of international Obligations), 3. Pacta Sunt
Servanda and 4. No Harm.
Judicial Decisions, references and inclusion of other cases / deliberations
Scholarly contributions, academics, jurists, scholarly publications from IL experts
Soft law are commitments by states but not legally binding, can pave way for CIL
Hierarchy of Sources
According to ARTICLE 38 of the ICJ, all sources carry the same value and only differ based on
the relevance with the particular case. Thus a more specific rule will prevail or a younger rule
will prevail. There are three exceptions:
1. Jus Cogens, preemptory norms, modifiable by law of same weight (No genocide etc.)
2. Erga Omnes, norms owed towards anyone in the international community
3. Obligations under UN Charter, according to ARTICLE 103 of UN Charter, they stand
over any instrument of IL and UN Security Council promulgates them.
Non-binding commitments: Soft-law instruments (Declaration of HR)
Law of treaties
The law of treaties is regulated by 1969 VCLT, the 1986 VCLT is meant for IO’s. Only those
who have authority can sign a treaty (heads of state/government or minister of foreign
affairs, or accorded diplomat) as by ARTICLE 7 of the VCLT.
Consent to be bound, done through definitive signature in which a state consent, regulated
by ARTICLE 15 VCLT. Signing may be followed by ratification ARTICLE 14 VCLT. When
ratification is needed, only then it is binding. If need stated, then it’s binding as well.
Entry not force/validity, if no date is specified its valid after signing. Period between signing
and entry into force is known as the interim period. ARTICLE 18 VCLT states that a state
must refrain from deviating from purpose of the treaty. Invalidity may arise with ARTICLES
46 to 53 VCLT (violation of important NL, errors n drafting, fraud/corruption, use of force or
when it violates jus cogens).
Reservations, if a state wants to be excluded of a legal effect of 1(+) provision. They are
generally acceptable if they are compatible with the object of the treaty, regulated by
ARTICLE 19 VCLT. Has to be done BEFORE ratification.
Amendments/Termination & Withdrawal, amendment is done by protocol, termination
may come up if the treaty has no more purpose or when consented by all parties. A state
may also terminate obligations because of permanent impossibility or because of major
force of circumstances.
