Week 1
Hoorcollege: ‘foundations and structures’
Examples daily live
Covid-19, BREXIT, International post/air travel, War in Ukraine, MH-17
Overview of topics (in order weeks)
1. Foundations and structure of international law
2. Sources
a. Two main types: Interaction of states & Customer international law
3. Subject
a. Two main types: States & Individuals (Natural & legal persons (companies))
i. States: creating international law and they have rights and obligations
ii. Individuals: have rights and obligations, they can take the state to court
4. Jurisdiction and Immunity
a. Jurisdiction: concern the place where the law applies, so it is like a territory
b. Immunity: kind off a protection, so certain people can’t be put behind bars
5. State Responsibility
6. International Disoute Settlement
7. Use of Force
Basics (evolution)
before 2100 B.C, Pre-Greek Civilizations: treaty between Lagash and Umma of Mesopotamia
settlement of disputes through arbitration, solemn oath for observance.
Ancient Greek and Roman Times: origin of certain principles and customes. E.g., treatment of
foreigner, arbitration for settling disputes, treaties on cemerce, peace agreements.
15th century Colonialism: Spanish, French, British and Dutch role, their were unsurprisingly
many scholars of IL from these countries. It was about acquisition of territories, sovereignty,
freedom of hjgh seas.
Catholic church: (first) International institutions (first court in 1472 Von Hagenbach trial)
End of 16th century: pope’s gradual loss of power. (Beginning international law of today)
Birth modern international law
(17th century) 1648 Peace of Wesphalia
This was so important for the formation of international law because it meant that you have
one identity
It was a period in which there were a lot of wars between identity’s ethinty’s and other
powerful persons, like the church. There was a need to end the war and religion and
companies started to reduce their power.
In the Netherlands a king came who had much more power than in the history.
19th century
Positivism law vs natural law
,Emergence of formal international institutions: Int Telegraph Union (1865), Universal Postal
Union (1874), Hague conferences (1899,1907)
Positivism = You think there is a rule and you respect this rule
20th and 21st century
Interwar period: The league of Nations
After First and Second World Wars: UN Charter, IOs ICL (Nuremberg & Tokyo tribunals).
The idea was that States need to see the benefits of international law
Decolonization: Self-determination, a lot of states were created.
Globalization 1989: Multiplication of actors, global governance (fall of the Wall)
9/11: Decentralized form of treath from different sides of the world, so how do you react to
threat which comes from a group of individuals. These individuals are from everywhere
because it is not from a certain state it is decentralized.
Populism: These people are not happy with the international law, they try to fight it kind of
back, because they want the vluchtelingen for example back to their county.
War on Ukraine: The use of force is not new to international law, but it is prohibited since
World War 2.
National and international law
National/Domestic = state and nationals (vertical)
International = states (horizontal)
Development international law
It develop in another way than the national law, because with international law the states can
determine how they want to work with the international law. You have 3 types of how the
states can use the international law in their law:
Relationship between national and international
Monism = single and coherent legal system, the international law is directly applicable in
national legal system. (Right away in to national law)
Dualism = International law has no effect on national, so they need to adopt a new law in to
the parlement. When they adopt it is starts immediately in their national law. (Not right away
in to national law, you can choose)
Pluralism = A way to understand national and international law, because of this you do not
have to choose between the monism and dualism. Those are completely separate.
(structure) Why do we have international law
Inadequacy of national law and dependency of international community.
Two types of rules:
Coexistence The fundamental rules which states need to adopt (horizontal). How will you
otherwise define space. For example: trade, use of the sea, creation of states and air travel or
communication
Cooperation States need to work together for a certain goal (vertical). They can use each
other’s knowledge or gadgets. For example: human right, international crimes or environment
protection.
,How IL works
Key notions: Sovereignty (punt 1 + 2) and consent (punt 3)
States have supreme power over their territory, and they may not be subject to the jurisdiction
of other states.
Each state has 1 formal vote which count equally
States must consent to be bound by international rules
Reflected in the fabric of international law: Sources, jurisdiction and communities
Critique (why IL isn’t law) implemention
International law can’t be enforced
States will act in their best ……..
“Almost all nationals observe almost all principles of international law and almost all of their
obligations almost all of the time” – Louis Henkin
States obey international law because
Desire for order and predictability over chaos: James Brierly (1963)
Consent and Obedience: Sovereign equality of states, social santions
Legitimacy: Credibility, reputation (who would help us in a war for example)
Enforcement mechanism: retorsions (diplomatic), tit for tat contract (economic)
International law is for most of the time enforced.
Enforcement of IL: international organisations or courts and tribunals, self-help etc
, International law
What is international law?
Traditionally = system of law that regulates the interrelationship of sovereign states and their
rights and duties to one another.
Present = Also the international organizations and persons who put their rights and/or
obligations under international law.
International law reflects the society to which it applies, so if the society becomes more
specialized then so will the international law.
In trust the states will make more agreements with each other and respect each another, but
when this trust disappears so they become rivals, then they do not respect each other anymore.
Also, the agreements that they already had is less interesting which they leave a little behind.
History and development of international law
15th and 16th century (Late Middle Ages)
Characterized by
1. Multiple levels of different allegiances and rights and obligations
2. Universal political and religious forces
The Pope was able to exert considerable influence over the various princes, emperors and
kings who governed their territories, but also the networks of knights and merchants were of a
transnational nature. Populations often felt closer to these communities than to their fellow
nationals
Natural law = natuurrecht ofwel hogere recht uit de natuur wat voor iedereen geldt
Natural law (jus naturale) contained an about natural and social life in the universe and
focused on the individual and their relation to the world. But States as rulers were also
individual.
Jus gentium is a law of people/nations and hence inferior to natural law. Sometimes this law
was based on overarching principles of natural law
During colonialism was also natural law, they said that the acts of the Spanish conquistadores
were also natural law. They could not justified it by ‘discovery’ or the grant of the Pope
because some argues that the natives were part of the society of human race etc.
17th and 18th century
A more clear distinction between jus naturales and jus gentium appeared.
Hugo Grotius (Hugo de Groot, rechtsgeleerde) had a major contribution to the development of
international law. He was applying natural law to international relations and developing the
law of nations to make it a practical tool for regulation a variety of areas of international
relations.
1648 Peace of Westphalia
The ‘birth’ of the international state system.
The peace of Westphalia ended the 30years war in Europa, so in this treaty they wanted to
create an international order derived from agreed rules and limits. The idea was to reduce the
