z Public international law
- Presentation (30%)
- Written exam (70%)
- Course coordinator PILbachelorcoord@uu.nl
Notes lecture week 1
Learning objectives week 1
Understand the history of the development of international law
Understand the structure and nature of international law
Understand in what respects international law is different from national law, and how it is
similar
Understand the difference between monist and dualist systems.
International law wasn’t built in a day
- 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, Britisch, Dutch role (unsurprisingly many scholars of international law
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
,Birth of modern international law: 1648 peace of Wesphalia
- 17th century: birth of modern ‘international community’
Why was the peace of Wesphalia so important for the formation of international law? From
this moment onwards, there was basically a more centralized power in a state, there was
either a king or a form of leader within each state and from this moment on it’s also
considered as a birth of modern state and therefor as a birth of modern subject of
international law. Important is the work of scholars, especially from 15 th century onwards
who wrote lots of textbooks and articles in international law. There were lots of scholars at
the time who made a huge contribution of international law that are influential today. And
then we see it from the peace of Wesphalia we had this new moment of a modern state
where a single individual start to exercise sovereign power and this make possible then for
interstate collaboration in terms of modern treaties if you wish.
In the past, because of the massive role of religion, in all societies, the focus was on natural
law. It wasn’t really much about written rules. It was express to be a divine rule, whether
how you treat others or who has the god given power to govern. People were born with
certain privileges, right of the nations.
From 19th century onwards, with the big loss as I said of the role of pope, and states become
more and more sovereign, the focus became stronger on what is called positivism. Positivism
is basically the focus on written rules and consent. There is no focus on some god given
rules, if states behave in a certain way, they do so because they have agree to do. So this is
the area where modern international law start to take shape through written rules, through
expression of consent. This let them to creation of international organizations, international
conferences, international telegraph union, Universal postal union, Hague conferences and
so on. From that moment on, we see the creation of international institutions, this was done
by states, sitting, agree with each other in a written form, what there rights and obligations
are. This was then, the way international law started to operate, with positivism.
20th to 21st century
- Interwar period: league of nations
- After the first and second world wars: UN Charter; IOs; ICL (Nuremberg and Tokyo
tribunals)
- Decolonization: self-determination
- Globalization (economic/cultural) 1989: multiplication of actors and global
governance
- 9/11’
- Populism
- War of Ukraine
There are a few moments that are relevant of the development of international law. After
the first world war, especially we have seen some movements for creation of international
based institutions to maintenance pieces security. So before the united nations, there was
another that basically had very similar powers and ideas, that was the league of nations. But
,it rules were still not strong enough, war was still not prohibited. So after the second world
war wee see a rise of modern international law, which still exist today. The vast majority of
international law and institutions were developed after the second world war. For example,
the united nations and lots of other international organizations (EU). The authorities of war,
served also as an inspiration to go away from nationalism, from oppression of human rights,
to a form of coexistence of nations. And that’s how many states gradually start to join all of
these different international organizations. Since, after WWII, we increasingly started writing
down unwritten international law rules in treaties and states increasingly concluded treaties
with each other to tackle cross-border problems and challenges, people can also rely on
internationally established rights much more often.
Another important moment, especially in the context of Africa, is the decolonization. So, the
whole idea of colonial powers from 15th century onwards, impacted several societies around
the world and you could not have equality of nations in a situation where several nations are
still colonized. In the UN Charter there is a right to sell the termination and that principle
served as a generator of creation of new states around the world. This was the part when
through the UN it was agree that all colonized people have the right to sell the termination.
They can exercise that right by creating new states or joining another state.
The fall of the berlin wall is also another important for international law. Especially in the
field of corporation, trade and so on. The fall of the berlin wall let to more corporation also
on the eastern part of Europe and other parts of the world.
9/11 is a new moment of international law. Up on till 9/11 a lot of international law was on
interstate relations or eventually on human rights. Individuals were not really seen as a
threat to world peace. States were seen as a threat to world peace. What happened after
9/11 is that we saw the emergence of organize and sometimes decentralized entities acting
as there is organizations and therefore threatening the very security and existence of states.
So this created a new era of challenge for states on how to deal with terrorism. There were
no rules emplace suggesting that if terrorist organized and come and hit you, that you go
back wherever they are and just fight them back, because of rules and provision use of force.
Up on till the moment populism became very strong especially in the west there was an
appetite for evolution of international law. International law had constantly evolved. New
treaties, new rules, new rights.
, The basics of public international law – national and international law
What are the main differences? Perhaps on the subjects that both of them have. So they just
regulate different issues. Every national law regulates issues related to national in legal
persons whether it has a written constitution or not etc. All of them have one thing in
common, it regulates issues related to natural and at times legal person.
In international law this is quite the opposite. It regulates states. The subjects of
international law are a lot more complex than that of national law.
Relationship between national and international law
In the one hand international law assume supremacy over national law. So when states sign
a treaty, in international level it is a assume that they are bound by that treaty no matter
what their national law says. They don’t go and conduct investigation and analysis of there
national law to see whether the issue what they agree to is compatible with their national
law. So international law presumes that international legal rules are applicable and there are
no justifications not to apply them except when rules of international law provide otherwise
(NOT of national law). On the other hand, constitutions regulate themselves the place of
international law. And you have different models:
- Monism – a single and coherent legal system. International law directly applicable in
national legal system.
- Dualism – two separate legal systems that operate independently. National
legislation adopted to give effect to international law
- Pluralism – relationship between the two systems is more complex and diverse
How is it possible that we in the Netherlands can rely on provisions from international
treaties before national courts? (effect of international law in the national legal order). This
depends on the type of system a Member State has opted for (monistic or dualistic). If it
opts for monism, then international law automatically becomes part of the national legal
order. Transposition of international law to national level via a special law is then not
necessary. However, if a state has opted for dualism, international law must be converted or
transformed into national law via a separate law.
In the Netherlands, therefore, not all treaty rules have direct effect. Only if they are binding
for everyone and if they have been made known (moderate monistic system).
