summary all materials for PRINCIPLES AND FOUNDATIONS OF INTERNATIONAL LAW giving in the master's degree (LL.M) at the University of Amsterdam (UvA) International and European Law
Principles and Foundations of International Law Summary
Week 1: System and Sources, and the History of IL.
International Law:
Difficult explaining the sources of international law derives from the consent of states.
a. Formal sources = methods for law-creation which are legally binding on their
addressees and of general application.
o Binding due to the consent of the addressee to them.
b. Material sources = not legally binding sources (soft law).
o Provide evidence that sheds a light on the existence of a legally binding rule.
Starting point is article 38 ICJ: sources to be applied by the ICJ = lex arbitri.
a. Customary international law.
Emerges through the accretion of social practices of individual actors which
crystallize, often over a long period of time.
o General practice usages.
Short period of time is not necessarily a bar to the formation (North
Sea Continental Shelf).
o Opinio juris acceptance of law.
Abstention based on a state being conscious of a duty to abstain
(Lotus).
Resolutions of the General Assembly (Nicaragua).
Unilateral acts of states (Nuclear Tests).
Reliance of a state on an exception confirms the custom.
Non-binding on those who object.
Persistent objection = not bound from the beginning.
Subsequent objection = only bound to the old rule.
b. Treaties.
Formal instrument which binds states (art. 2(1) VCLT).
o Creates law only between the states which are parties to it.
Does influence how other sources of international law develop can
bind third parties too.
Cannot change an existing customary rule into positive law.
o Even though it is not formally a lawmaking organ, resolutions of the Security
Council are formally binding upon states.
c. General principles of law recognized by civilized nations.
In order to bridge the gap when there were no applicable treaties or customs.
o Identification of a principle common to a representative majority of national
legal systems.
Implies a comparative approach.
Requires a careful transposition of norm compatible with international
law and the obligations contained in it.
o Identify if the principle is appliable in international law.
d. Subsidiary means.
, Those can be referred to as material sources of international law.
Between these rules there is not necessarily a hierarchy of norms difficulties discerning
which norms of rules might have a peremptory character.
International law is a consent-based system with
no centralized law making authority.
However, there are norms of jus cogens = hierarchically superior status.
a. Natural law = inherent to the human kind.
o Will always be static.
b. Jus cogens = rules that are (i) non-derogable in all circumstances; (ii) applicable to all
states; (iii) accepted and recognized as peremptory by international community of
states as a whole.
o Feature of general customary law.
Based on common values of all nations.
Can be changed by new rules of jus cogens.
o Treaties are void if they conflict with such rules of law (art. 53 VCLT).
Obligations erga omnes are rules owed to all.
All peremptory rules give rise to obligations erga
omnes the reserve is not true.
Jus cogens rules have a certain scope:
- Non-derogable and nullity of treaties.
If a provision is in violation of jus cogens treaty as a whole will be void of all legal
effect from the outset.
o States cannot, through mutual consent, derogate form a peremptory norm.
o No defenses can be invoked for a breach of such norm.
- Universal scope of application.
Jus cogens is universally applicable as a rule of general international law.
o Ratification is not required.
o Objection is not possible (compare to customary rules).
- Non-recognition.
States must cooperate to bring an end a serious breach of jus cogens.
o Rules of state immunity continue to apply.
Rules of jus cogens:
i. Prohibition on aggression or aggressive force.
Small forcible incursions do not meet the threshold (Nicaragua).
ii. Prohibition of genocide (Congo).
Intention to destroy in whole or in part a national, ethical, racial or religious group.
iii. Prohibition of slavery.
iv. Prohibition of apartheid and racial discrimination.
v. Prohibition of crimes against humanity.
Committed on a widespread and systematic scale against any civilian population.
vi. Prohibition of torture.
, vii. The right to self-determination.
Is International Law International:
International law governs relations between states and aspires to be universal applicable.
Reflects national and regional biases.
How international law is constructed and contested across different contexts:
a. Difference.
o There are national and regional variations.
o International lawyers are not a homogenous group.
Influenced by legal traditions; educational systems; language;
geopolitical contexts.
i.e., Chinese lawyers may prioritize sovereignty over human rights.
Shape their understanding of international law.
o Fragmentation withing international law.
International law is an amalgamation of partially overlapping subfields.
Thematic: human rights vs. trade law.
Geographical: own legal doctrines and interpretations.
o Echo chambers and siloed debates.
Lawyers operate within national or regional echo chambers where they
engage with like-minded peers.
Reinforces national perspectives.
b. Dominance.
Western and Anglo-American hegemony.
o Language as a tool of dominance.
Disadvantages those form non-English or French speaking regions.
o Globalized localism.
National (Western) approaches to law are exported and adopted as the
international standard.
Global spread of Western legal norms at expense of non-Western
ones.
o Impact on international institutions.
At the ICJ and at arbitral institutions Western trained lawyers and legal
precedents play a leading role.
Skews the interpretation of international law in favor of the
west.
c. Disruption.
Dominance of western international law will be challenged by the rise of non-western
powers because = shifting geopolitical power (South China Arbitration (2016)).
o Technological and political changes.
o Broader trends toward nationalism and protectionism.
Different views on international law can be demonstrated by looking at the international legal
communities in the five permanent members of the UN Security Council:
a. China.
, International law is characterized by an emphasis on stat sovereignty and non-
interference.
Reflects historical experiences and current geopolitical concerns.
b. France.
Has a civil law tradition.
Influence of Napoleonic Code on codification of international law.
Influence has been overshadowed by Anglo-American dominance.
c. Russia.
Heavy emphasis on sovereignty and primacy of state interests.
d. UK / US.
Shaping international legal order through promotion of common law principles and the
use of the English language.
Challenged by rise of other powers and internal challenges (protectionism).
The Theory and Reality of the Sources of International Law:
Most of international law is focused on primary rules.
Rules that set out rights and obligations of states
and other international actors.
Also has to have secondary rules that establish the sources of international law.
Rules that are applied to determine the existence
and content of the primary rules.
How and when primary rules are formed, whom
they bind, and how they can be changed.
Sources of international law (art. 38 ICJ):
Sets out the sources that the court is to apply when deciding disputes before it.
i. Treaties.
International agreement concluded between states governed by international law.
a. Binding only to the parties reflect customary international law (non-parties
may be bound to the same substantive obligation (Nicaragua)).
b. Can set aside customary international law.
ii. Custom.
Considered to be made up of two elements:
a. State practice.
General and practice by states.
No set rules on consistency, generality, or duration of practice required.
Settled practice to be widespread.
o Not every single state needs to follow the practice.
Problem if there’s divergence between what states say and what they do
(Nicaragua) attitude rather to conform the rule.
Problem when an issue is new and little practice has had time to accrue
(North Sea Continental Shelf) extensive and virtually uniform.
Can be the case where treaties are widely adopted and where states are
specially affected (Legality of the Threat or Use of Nuclear Weapons).
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