Public International Law
2022-2023
Samenvatting van het boek
C. Rose e.a. An introduction to public international law
- Week 1.1: H1, H2, H3, H6, H7
- Week 1.2: H4, H8
- Week 2: H9, H10
- Week 3: H4, H5, H11
- Week 4: H12
- Week 5: H13
- Week 6: H14
,Public International Law || 2022-2023 || C. Rose e.a., An introduction to Public International Law
Chapter 1 – Sources of International Law
Source of international law has two meanings: legal processes + the location of the norms that are the result of these
processes. Unlike domestic law (nationaal recht), is identifying the sources of public international law more
uncertainty for practitioners and room for debate.
Public international law is decentralized (gedecentraliseerd), as it lacks (zowel) a constitution (GW) as well as a
legislature (wetgevende macht).
PIL is created by states and the states are creators of PIL and subjects.
Art.38 ICJ statute:
Conventions/treaties Represent processes for law-making.
Customary international law - In practice hierarchy: treaty law, custom
General principles of law law and general principles.
Judicial decisions Represent places where international legal
The teachings of various nations norms may be found.
o Decisions of international organizations
o Unilateral declarations
ICJ has jurisdiction over ‘disputes’ (bevoegd over geschillen te beslissen), and in deciding these disputes, it is bound
to apply the sourses, unless the parties indicate otherwise.
Treaty law:
Written agreements between states, between international organizations, or between international
organizations and states.
Bilateral (2 states) or multilateral (3 or more states)
Framework agreements: lay out general rights and obligations, which are supplemented or developed
through the conclusion of more detailed protocols.
States have almost complete freedom in the treaty-making process, as long as the treaty fits within the
norms of PIL.
o 1: Negotiation (onderhandeling) and conclusion of a text formally adopted.
o 2: Expressiong their consent to be bound (gebonden) by the treaty.
o 3: Entry into force takes place (binding on parties and must be performed in good faith).
o 4: Treaties become living instruments.
Customary international law:
Process by which unwitten international laws are made, annulled (verklaard) and changed.
Only applies to a limited number of states that are linked to each other by belonging to the same region, sub-
region or other non-geographical tie.
More difficult to identify, because it is based on the general practice and beliefs of states.
Two elements:
o General practice among states
Found in the words and actions of states > not just of few major powers (grootmachten), but
instead involves practice that is ‘sufficiently widespread and representative, as well as consistent’.
Widespread: large or extensive
Be representative: states form various geographical regions and interest, must engage
(bezighouden) in the practice. And evolve over a period.
o Acceptance by, or the conviction (overtuiging) of states that this practice is required by law (wettlelijk
verplicht).
Opinio juris: States engage in practice out of sense of legal obligation. States recognize or hold a
conviction or belief that international law requires, prohibits, or allows a particular practice.
Sometimes states do clearly indicicate, but most of the time inferred (afgeleid) from relevant
state practice, due to the absence of any explicit statement about why a state has engaged in
a particular practice.
Distinction between general practice that evidence a legal rule or stems a courtesy,
convenience or habit.
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,Public International Law || 2022-2023 || C. Rose e.a., An introduction to Public International Law
The relationship between treaty law and customary international law:
The same rule can be found in both treaty law and customary international law. A treaty law may relate to
(betrekking hebben) a rule of customary law in the following different ways:
A treaty rule may codify a customary rule that already existed at the time of treaty’s conclusion.
A treaty rule leading to crystallization (kristalisatie) of a rule of customary law that was in the process of
emerging (aan het ontstaan was) prior to the treaty’s conclusion.
A treaty may itself generate a new customary rule.
General principles of law:
Are unwritten legal norms of a broad character that play a gap filling role in the international legal field.
Existence of principles:
o Principles that are common in all domestic legal systems are transposable to the international level.
o Fundamental principles grounded in the international legal system.
Decisions of international organizations:
International organizations are established by treaty and they possess their own legal personality, separate from
their member states.
Decisions of international organizations have particular significance when they have a legislative character
because of their potentially far-reaching effects, which can mirror those of treaty or customary law.
Unilateral declarations: (eenzijdige verklaringen)
Can create binding legal obligations for the declaring state, upon which other concerned states are entitled to
reply. >> Made publicly + limited circumstances.
Political commitment, or a legally binding obligation, depends on the content of the declaration, the
circumstances surrounding it, and the reactions to the declaration by other concerned (betrokken) states.
Unilateral declarations that create binding legal obligations must be made by state officials who unquestionably
have the authority to do so, namely heads of state or government and ministers of foreign affairs (buitenlandse
zaken).
Subsidiary sources of PIL:
Judicial decisions and ‘the teachings of the most highly qualified publicists of the various nations’ are
‘subdidiary’ sources of PIL in the sense that may only serve as evidence of the existence or the content of rules
of PIL, but not as means for their creation. (bewijs van bestaan van de regels of de inhoud van PIL, maar niet als
middel voor hun oprichting van PIL).
Only state scan create international law.
The court’s decisions, ay other international court or tribunal can create PIL, but they have contributed
considerably to the explanantion of the law.
Not-binding international instruments (don’t represent sources of PIL at all)
They embody political or moral instruments, rather than legal obligations, and they take a wide range of forms,
including resolutions, recommendations, guidelines and declarations.
Three main ways in which non-binding instruments contribute to areas of international law:
o May contribute (bijdragen) the development of a binding norm.
o May follow treaties, and serve as a means by which treaty rules are expanded or updated (uitgebreid of
bijgewerkt).
o Norms and instruments may have an independent life of their own, distinct form any binding rules of PIL.
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, Public International Law || 2022-2023 || C. Rose e.a., An introduction to Public International Law
Chapter 2 – Subjects, statehood and self-determination
Sovereign states are the main subjects of international law (prominent position). In the twenty-first century is the
circle of subjects expanded with international organizations, peoples (volkeren) and individuals.
Subjects of international law:
Is an entity that can possess rights, duties and competences under international law.
Not all subjects have the same powers. There is a distinction between
o Subjects with full legal capacity: Only states have all rights, duties and competences.
o Subjects with partial legal capacity: International organizations, peoples and individuals only have some
international legal rights, duties and competence.
International organizations:
Exist in many ways and are created for a wide range of purposes (bv: European Union, WTO, UN).
Established by states and by means of a treaty, for the purpose of exercising certain public tacks.
May obtain international legal personality, either explicitly or implicitly.
Only have those powers that are attributed to them by their members and that are necessary for the exercise of
their functions.
Non-governmental organizations (NGO’s)
o Established by private actors and not by means of a treaty and are governed by national law (beheerst bij).
o Don’t have rights and obligations under international law, because they don’t possess international legal
personality.
o Have a observer status within various international organizations: they are permitted to attend meetings of
the organizations, but they don’t have the right to vote.
o May influence states by pressuring (onder druk zetten) them to observe certain norms of international law,
or by encouraging them to conclude particular treaties.
o May indirectly contribute to the development and enforcement (handhaving) of international law.
Individuals:
The emergence (opkomst) of international human rights law:
o International law grants (verleent) rights and obligations to individuals. The rights come with certain
competences, as indivuals have acess to various international courts and committees to enforce these
rights. Individuals don’t only have rights through their state, but also on their own, as human beings.
The emergence of international criminal law:
o When individuals don’t live up their obligations, they may be held accountable (verantwoordelijk) under
international law. International courts and tribunals have been established to effectuate individual criminal
responsibility for international crimes.
People/ group of individuals:
Peoples are groups of individuals that share a common territory, history, language and culture or common
characteristics (groups within a state).
Indigenous peoples (inheemse volkeren) > collective rights
Minorities (minderheden). Minorities have individual right, not collective rights. They can only be invoked
(ingeroepen) by an individual member of a minority group, not by the community as a whole.
Armed opposition group: have certain fundamental rights and obligations under de laws of armed conflict.
These groups don’t have rights, competences or obligations under international law.
Multinational corporations (MNC’s):
MNC’s are bestowed (krijgen) with certain rights under international economic law, primarily to protect foreign
investments against discriminatory regulations, expropriation and other actions that may harm the economic
value of the investment.
MNC’s are capable of impacting human rights > the guiding principles specify the responsibility of corporations
to respect human rights.
Increasingly argued that MNC’s have obligations under international law as well, with respect to human rights
and protection of the environment.
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