Weblecture week 1
Part 1
Traditionally, international law is a system that regulates the relationships among sovereign States.
Substance-wise, international law has come to cover a very wide number of issues. International law
is relevant for many different aspects of our life like the environment. International law does not only
have a centralized legislative of executive body in the way these are typically regulated under
constitutional law. But it also has no parliament who makes the laws.
It is a long way to the current international legal system.
Roman empire: there were natural laws (=natuurwetten) and the idea of ius gentium as a set
of rules dictated derived from natural reason common to all people.
Middle Ages: international society composed of a transnational network of diverse entities
and individuals.
Emergence of colonialism: Western European reigns subjugating (=onderdrukken) native
Indian populations
17th/18th century: first emergence modern international law and in 1648 were included in the
Peace of Westphalia the nation-states, state sovereignty and equality principle among states
(start of a positivist turn in law)
From 19th century to present: positivist turn in law this means that the primary source of
law is state.
o While originally international law was mainly concerned with the horizontal
relationship among states (coexistence), increasingly vertical and transnational
issues are taking center stage (cooperation)
Part 2
A subject of international law can be defined as an entity capable of holding international rights and
duties and having capacity to protect its rights by bringing international claims. There are 4 actors in
international law. For a long time, the only actors of international law were nation states. All
sovereign states are equal under international law. After the destruction of WW2 international
organizations (UN, NGO) became actors too. They helped states agree on laws to stop them fighting.
Currently there are 2 more actors: multinational corporations and the individual.
The UN play a big role in international law. The UN was set-up after WW2 to make sure something
like this won’t happen again by setting up a platform for nations to talk to each other and making
agreements like the EVRM. UN has achieved a lot, for instance helping countries gain independence
from colonialism.
What is a state? There are 4 main criteria (included in Montevideo convention) to describe a state:
1. Permanent population
a. On a certain territory there needs to be a number of individuals that respond to the
commands and the legal system introduced by the government of the state.
2. Defined territory
a. While it is important to have a more or less defined territory, a certainty as to the
exact boundaries do not need to be completely settles.
3. Government (authority over territory)
a. There is an entity that exerts its authority and its effective control over a population
that responds to that authority. The form of government is not relevant.
4. A capacity of the government to enter into relations with other states.
a. The government has to be able to independently interact, conclude agreements,
come into certain relationships with other equally sovereign states.
i. For example, Scotland cannot fully enter into international relations with
other states, this aspect is delegated to the United Kingdom.
,All these criteria’s rest on the principle of effectives. Everything rests on effectiveness.
Statehood goes to a lot of controversial matters. The most relevant ones are:
Does statehood depend on the recognition of other states?
o Constitutive view a State is such once recognized by other States of the
international community.
o Declaratory view a State is such when it fulfils the criteria (leading view)
But recognition play an important role because when none of the states
recognize another state, it is not a state, even though it has all criteria.
What about illegally created entities?
o Ex injuria jus non oritur no legal rights can arise from wrongful conduct. Yet, think
of Bangladesh: ex injuria jus non oritur is not always applied consistently in practice.
The relationship between self-determination and statehood.
Self-determination is the right of all peoples to freely determine their political status and their
economic, social, and cultural development.
Internal self-determination people can exercise their autonomy within the framework of
the mother state.
o For example, provincies in Nederland (own sub government, own sub parlement)
External self-determination there is a claim to statehood to become a separate entity
from the mother state and become an independent state.
o For example, it would be a wish of Friesland to become a separate state.
In the ICJ Kosovo Advisory Opinion it was decided that international law does not preclude
declarations of independence, but the court made no determination as to the right to secede.
States can also go through various vicissitudes (=events (for example, territory can change))
Acquisition of new territory:
Cession purchase or swap of territory
o When a new territory comes, the rights of the new sovereign cannot expend beyond
the rights that were exercised by the state, ceding/giving/selling the territory.
o There might be valid claims over that territory on behalf of third states that have to
be respected.
Accretion nature, by certain events, will create further territory.
o No artificial accretion is valid under international law.
Occupation efficte control over ‘terra nullius’ (= no man’s land)
Prescription acquisition of territory with the consent of the sovereign states
Forceful territorial acquisition does not give a valid claim to territory.
State sucession what happens when a state is replaced with another?
o Clean slate approach: In terms of treaties the new state is not considered bound by
the treaties concluded by its predecessor but for uti possidetis juris in relation to
geographical boundaries and human rights & humanitarian treaties.
Extinction almost impossible to happen involuntarily.
,Part 3: Individuals and International organizations
International organizations
Intergovernmental organizations are created by states via a treaty to perform a function that states
alone do not want of are unable to perform. The international legal personality is limited to the
function that they are tasked to perform. So, the international legal personality of international
organizations is functionally limited. The entity cannot perform any tasks outside of the competences
that have been mandated by the states.
But how do we know that an entity is an international organization and therefore it possesses
international legal personality? There are certain elements that you should look for.
1. The states intended via the text of a treaty to assign a distinct legal personality to the
organization from that of the states. This means that states are members of the international
organization, but the entity exists as an independent entity. This means that it needs to be
able to manifest its own will at an international relations level that is distinct from the will of
the Member states and that it can operate independently at an international level. Think of
the United Nations; it can conclude international agreements with other entities, for example
with other international organizations. Their resolutions are mandatory for all the members
of the United Nations.
Individuals
Just as international organizations, individuals have rights that have been bestowed (=gegeven) upon
them by states, via treaties and custom law like human rights.
Individuals were for a very long time considered objects (=degene die handling ondergaat) of
international law. Now these are considered subjects (=degene die handelt) because international
has given them rights and duties. In fact, obligations are imposed on individuals via International
Criminal Law. Individuals that are authors of this very severe act can be prosecuted before
International Criminal tribunals like the International Criminal Court.
Also groups of individuals can be considered as possessing international legal responsibility but there
is still a debate when it comes to private companies. While there is a consensus that they enjoy
certain economic rights, there is still a debate whether they have to respect certain international law
rules.
Non-governmental organizations
NGO’s do not possess international legal personality. So, they cannot be considered as subjects but
as actors of international law in the sense that even if they don’t enjoy rights and don’t have to
respect duties, they are still highly influential in the international legal system.
For example, Greenpeace: they can monitor state compliance with international rules, so
sometimes they are parties to compliance committees or they indeed issue report on the
compliance of certain states with international law.
However, NGOs cannot directly submit a claim, but they can participate as non-party, which means
‘friend of the court’, or someone who submits documents which explain, for example, why they
believe a certain claim is important, why they believe a certain claim is valid. However, it's really not
related to the NGOs as being directly claimant before international courts and tribunals.
Part 4: Jurisduction
Important Case law quotes
Island of Palmas case sovereignty in the relations between states signifies independence.
Independence, when it comes to a state, is the right to exercise within a certain territory,
authority, and control. In other words: a state is free to exercise its authority, its sovereign
function within its territory, without the interference of any other state.
Lotus case a state may not exercise its power in any form in the territory of another state,
because this would be perceived as a violation of the territorial integrity of the other states.
, However, the prohibition against physically exercising jurisdiction in other states did not
mean that a state was also prohibited from exercising jurisdiction in its own territory in
respect of any case which relates to acts which have taken place abroad, and in which it
cannot rely on some permissive rule of international law.
In general, the Island of Palmas and the Lotus case illustrate that a state is entitled to regulate
conduct that occurs abroad, but it may not enforce its laws outside its territory.
The principle of jurisdiction means that states within the rules of international law and within their
territory are allowed to adopt and apply laws, to enforce the laws that they have applied with the
laws, and to adjudicate these laws or the violation to these laws. They seek to balance the rights of a
sovereign state to exercise its influence over matters of its concern without intruding upon the
interests of other sovereign states.
The principles of jurisdiction translate into important distinctions between various means of
jurisdiction:
Jurisdiction to prescribe bevoegdheid tot wetgeving maken
Jurisdiction to enforce bevoegdheid tot handhaving
Jurisdiction to adjudicate bevoegdheid tot rechtspraak
Prescriptive jurisdiction
The jurisdiction to prescribe is the right of states to adopt and apply laws in relation to practically any
conduct, any individuals, any object that is not necessarily limited to the territory of that state. So, in
principle, the jurisdiction to prescribe means adopting laws to regulate individuals conducts objects,
entities, regardless of where they are located. We said before that this is territorially limited, but in
the case of jurisdiction this is not the case in the moment that we have a permissive rule under
international law that allows the state to adopt laws on the behavior and conduct of its citizens
abroad. The permissive rules and the jurisdiction to prescribe are to be found, typically in
international customary law, but also in treaties.
However, a state cannot decide that it wants to rule over the entire world. So, there needs to be a
connection between the right of the state to prescribe and their behavior. These connecting factors
help limiting the jurisdiction to prescribe of states. There are several customary international
principles which help to determine jurisdiction in different situations:
1. Territorial jurisdiction a state has jurisdiction over all acts commited on its own territory.
There are 2 approaches to deal with a ‘cross-border situation’ (= a crime started in another
territory than where it finished):
a. Objective territoriality focuses on the effects of an offence and holds that a state
will have jurisdiction over an offence that is completed on its territory.
b. Subjective territoriality a state has jurisdiction over all acts that are completed
abroad if they are initiated or planned on the territory of the state in question. This
approach is important to crimes like terrorism and cybercrime.
In cases like transboundary drugs crimes, both states have jurisdiction. One for objective
territoriality (drugs have been sold over the territory of that state) and one for subjective
territoriality (drugs have been produced over that territory)
2. Jurisdiction based on nationality each state can decide who they consider their Nationals,
but the International Court of Justice had been very clear in requiring a genuine connection
between an individual and a state for the principle of nationality to be satisfied. So, we can
distinguish different subprinciples:
a. Active personality (nationality of suspect) States may extend their laws to their
own nationals regardless of where they are located.
i. States have a legitimate interest in the behaviour of their own citizens
abroad and since states don’t want to extradite their nationals to criminal
prosecution in other states, they need to prosecute their own nationals for
