Lecture 1 - Foundations and Structure of International law
donderdag 9 februari 2023 12:09
Notes Lecture:
I. Evolution:
○ Pre-Greek Civilisations:
▪ e.g. before 2100 B.C. 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 customs. e.g. treatment of foreigners, arbitration
for settling disputes, treaties on commerce, peace agreements.
○ Colonialism (15th century onwards):
▪ Spanish, French, British, Dutch role (unsurprisingly many scholars of IL from these
countries): acquisition of territories, sovereignty, freedom of high seas etc.
○ Catholic church:
▪ International institutions (e.g. first ad hoc court in 1474 - von Hagenbach trial).
○ End of 16th century:
▪ Pope's gradual loss of power
○ 17th century:
▪ Birth of modern 'international community'. The Peace of Westphalia in 1648.
○ 19th century:
▪ Positivism vs natural law: which one prevailed
▪ Emergence of formal international institutions: Int Telegraph Union (1865) and
Universal Postal Union (1874); Hague conferences (1899, 1907).
○ 20th to 21st century:
▪ Interwar period: League of Nations
▪ After the First and Second World Wars:
□ UN Charter; IOs; ICL (Nuremberg and Tokyo tribunals)
▪ Decolonisation: self-determination
▪ Globalisation (economic; cultural) 1989:
□ Multiplication of actors
□ Global governance
▪ 9/11
▪ Populism
▪ War on Ukraine
II. National and international law:
○ What are the main differences?
○ What is international law?
▪ Domestic Law (national law) --> State vs nationals
▪ International law --> States
○ Monism:
▪ A single and coherent legal system
▪ IL directly applicable in national legal system
○ Dualism:
▪ Two separate legal systems that operate independently
▪ National legislation adopted to give effect to IL
○ Pluralism:
▪ Relationship between the two systems is more complex and diverse
III. The structure:
○ Why do we have IL?
▪ Inadequacy (= ontoereikendheid) of national law
▪ Dependency of international community
○ Two key notions that explain why we have international law:
▪ Coexistence:
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, ▪ Coexistence:
□ Trade
□ Telecommunications
□ Air travel
□ Use of the sea
□ Creation of States
□ Treatment of ambassadors
▪ Cooperation:
□ Prohibition on the use of force
□ Protection of the environment
□ Human rights
□ International crimes
○ Two key notions that explain how international law works:
1) Sovereignty
2) Consent
□ States have supreme power over their territory and may not be subject to
the jurisdiction of other states
□ Each state has 1 formal vote which counts equally
□ States must consent to be bound by international rules
Reflected in the fabric of international law:
a. Sources
b. Jurisdiction
c. Immunities
IV. (Non) Implementation of IL:
○ Critique:
▪ Can't be enforced
▪ Just a collection of principles/values
▪ States will act in their best interests regardless of the rules
▪ It is ineffective because it is violated all the time
○ The international legal system:
▪ "Almost all nations observe almost all principles of international law and almost all
of their obligations almost all of the time."
--> Louis Henkin
○ Why do states obey international law (most of the time)?
▪ Desire for order and predictability over chaos:
□ James Brierly (1963): "the ultimate explanation of the binding force of all law
is that man (read: person), in so far as he is a reasonable being, is to believe
that order and not chaos is the governing principle of the world in which he
has to live"
▪ Consent and Obedience:
□ Sovereign equality of states (reciprocity; social sanctions)
▪ Legitimacy:
□ Credibility, reputation - who would join US in a potential war against Iran?
▪ Enforcement mechanisms:
□ Retorsions (diplomatic) / contracts: 'Tit for That' --> effectiveness?
○ Enforcement of IL:
▪ International organisations
▪ International courts and tribunals
▪ Self-help
Summary literature:
Henriksen, Chapter 1 - Foundations and structure of international law:
- Introduction:
○ Public international law deals with issues of concern to more than one state. Not only
the sovereign states but also international organizations and individuals are under
(public) international law. International law is divided in sub-disciplines, such as the
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, (public) international law. International law is divided in sub-disciplines, such as the
international law of the sea, international human rights law, international environment
law, international economic law and the laws of armed conflict. Legal issues in 'the old
days' were dealt with exclusively within one of the sub-disciplines. But nowadays the
legal issues are handled in more than one sub-disciplines.
- A brief history of international law:
○ Early modern international law:
▪ International law as we know it today was invented in Europe. In the late middle
ages (15th and 16th Centuries) Europe was characterized by both multiple levels
of different allegiance (=loyaliteiten) and rights and obligations as well as the
universal political and religious forces of, respectively, the Holy Roman Empire (=
het Heilige Roomse Rijk) and the Catholic Church (= de Katholieke kerk). Through
the spiritual authority of the western world, the Pope (= Paus) in particular was
able to influence the princes, emperors and kings. This was also the time when
ideas about the normative structure of the world were dominated by theories of
natural law. These theories were originally developed in the classical eras (=
klassieke tijdperken). Next to natural law (= jus naturale) was jus gentium. This is a
law of people/nations and inferior to natural law, it is derived (=afgeleid) from
natural law. This was also the period of colonialism (= colanialisme) and the early
confrontations between Spanish explorers (= Spaanse ontdekkingsreizigers) and
native Indian populations (= Inheemse Indiaanse bevolkingsgroepen) and
kingdoms in the New World. These confrontations were a challenge to
philosophers and legal scholars at that time. In the 17th and 18th centuries was
the beginning of the contours of a modern international system. There was a
clearer distinction between jus naturale and jus gentium. International law as we
know it nowadays was developed by jus gentium. A leading figure was the Spanish
Jesuit Francisco Suárez .He was succeeded by the Dutchman Hugo Grotius. He had
an important part at the applying of the natural law to international relations and
developing the law of nations to make it a practical tool for regulating a variety of
areas of international relations. Another influential figure was Emmerich de Vattel,
his book contains useful legal guidance for practitioners of international law.
□ Jesuit Francisco Suárez (Spanjaard)--> wordt gezien als de grondlegger van
het internationale recht. Schreef een boek over de verhandeling van wetten
en god de wetgever. Later opgevolgd door Hugo Grotius.
□ Hugo Grotius (Nederlander)--> Hij had een belangrijke rol bij de toepassing
van het natuurrecht op internationale betrekkingen en het ontwikkelen van
het recht van naties om het een praktisch hulpmiddel te maken voor het
reguleren van een verscheidenheid aan gebieden van internationale
betrekkingen. De ideeën van Grotius over de zeevaart domineren voor het
grootste deel het hedendaagse zeerecht. Wordt beschouwd als een
voorloper van de grote natuurrechtsdenkers.
□ Emmerich de Vattel (Zwitsers)--> boek met juridische richtlijnen voor
beoefenaars van internationaal recht. Wordt gezien als een van de
grondleggers van het rechtspositivisme in het volkenrecht. Is in zijn
juridische denken beïnvloed door Hugo Grotius (ook wel Hugo de Groot
genoemd).
○ Peace of Westphalia:
▪ The birth of the international state system is usually traced down to 1648, the
Peace of Westphalia. This ended the thirty years of war that ravaged continental
Europe. In the peace treaties of Westphalia, consisting of the Peace of Munster
and the Treaties of Munster and Osnabruck, the major European powers sought to
establish a semblance of order and structure in an otherwise anarchical and
disorderly European world. The idea was to reduce the power of transnational
forces (like empire and religion) and instead divide individuals and territory into
sovereign states. By striving for an international order from a multiplicity of states
of equal legal importance, Westphalia was a turning point. Westphalia was, in
principle, only a concept for creating order in the torn Europe, but it spread to the
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, principle, only a concept for creating order in the torn Europe, but it spread to the
rest of the world and to this day remains a key building block of international law.
Before the peace of Westphalia there was a French lawyer named Jean Bodin who
introduced the theory of a sovereign possessing absolute and indivisible power
answerable only to God. The sovereign would be above the law and would both
create and break the law at his own discretion. These thought were later
supplement by Thomas Hobbes and John Locke.
○ The 19th century and the era of positivism:
▪ The 19th century was the era of positivism, it was based on the idea that acts of
states could be judged according to transcendent ideals of fairness or divine will.
The only primary tent (= principe) was that the only source of law the will of the
state was. According to the consensual theory, unless a state has consented to be
bound by an rule, there is no international legal obligation and the state can acts
as is pleases.
○ The interwar (= interbellum, periode tussen twee oorlogen) period:
▪ The destruction and carnage of the first world war dominated events in the
interwar period. A primary development was the creation of the League of Nations
(1919, de volkenbond), their task was to maintain world peace, unfortunately they
didn't prohibit war. But it required states to submit potential destabilizing disputes
to one of a number of settlement mechanisms and to desist from resorting to war
until a certain periode had elapsed following the decision by that mechanism.
Efforts to forbid war were not attempted until 1928 when the Treaty of Paris (also
known as the Kellogg-Briand Pact) obliged parties to refrain from going to war as a
means of settling their international controversies and as an instrument of
national policy. A major achievement was the successful establishment of the
Permanent Court of International Justice (PCIJ) based in The Hague in the
Netherlands. The court did not have compulsory jurisdiction, but it did build a
substantial body of case law. It was also the forerunner of the International Court
of Justice (ICJ) as we know it these days.
○ The period after the Second World War:
▪ The period immediately after the Second World War was a time of major
achievements in international law. One of these things was to prosecute top
German officials (Nazis) for international crimes before a war crimes tribunal in
Nuremberg. Furthermore, the League of Nations was replaced by the United
Nations (UN), which was entrusted with the maintenance of international peace
and security. The UN is built on the Westphalian principles and based on respect
for the principle of equal rights and self-determination of peoples and on the
sovereign equality of all its member states. The Charter of the United Nations is
the founding treaty of the UN, it introduced a ban on the use of force and have a
collective organ (the Security Council) the competence to maintain international
peace and security and, to that end, if necessary, to authorize forceful measures.
From this moment, the maintenance of peace and the conduct of war were a
collective effort.
▪ The UN Charter established a General Assembly where all member states are
represented and can give their opinions and raise their concerns. The assembly
was also imported by the development of international law. In 1946 it established
the International Law Commission (ILC) whose primary purpose is to promote the
progressive development of international law and its codification. In 1944 there
was created an important international organizations ('sister organizations' from
the UN) for the regulation of trade and monetary policy:
□ The International Monetary Fund (IMF)
□ The International Bank for Reconstruction and Development (the 'World
Bank')
□ The General Agreement on Tariffs and Trade (GATT).
▪ In 1955 the World Trade Organization (WTO) replaced the old GATT system.
Another important post-war UN-agency is the World Health Organization (WHO),
that was established in 1948 to monitor public health risks and coordinate
responses to health emergencies.
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