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Samenvatting; Public International Law
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- Universiteit Utrecht (UU)
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Public International LawLearning objectives
Class 1 – The Nature and Structure of International Law
What is international law?
International law is concerned with the regulation of international relations. States
are the primary subject and are ultimately the ones who create international law.
Without States, international law would hold no purpose.
- The main source of international law are treaties and (international)
customary law.
Private international law: concerns the relationships between private persons.
Public international law: concerns the relationships between public persons or
States.
International law’s relations with politics
There exists a relation between international law and politics. International law is
primarily made by politicians, as they are the ones who negotiate treaties. Where
politics determines the law, the law also determines politics.
Sources of international law
When interests of States collide, the legal solutions to arisen problems can be found
in international law. When such a colliding interest arises between two or more
States, international law can enter the picture in three ways.
- Firstly, States can make treaties with one another to address issues.
- Secondly, States can create customary international law through practice.
- And thirdly, the international courts can interpret the rules set out in treaties or
can decide what is customary law and what not.
The history of development of international law.
International law – as we know it today – was invented in Europe. The development
of international law can be divided in particular periods of time.
Late Middle Ages (15th and 16th centuries)
The late Middle Ages Europe was characterized by two things:
1. Multiple levels of different allegiances and rights and obligations.
2. The universal political and religious forces.
The Pope had quite some influence over various rulers who governed their territory,
but also the networks of knights and merchants were of transnational nature.
Populations often felt closer to these communities than to their fellow nationals.
Natural law contained an all-embracing set of ideas about natural and social life in
the universe and, thought primarily focused on the individual and their relations to the
world, it also applied to States by virtue of the fact that rulers were also individuals
and therefore subject to it.
Next to natural law (jus naturale), there was jus gentium. This was considered to be
the law of people or nations. This law was inferior to natural law and sometimes this
law of nations was based on overarching principles of natural law.
,The period was also the dawn of colonialism. When the Spanish had conquered new
areas in the ‘New World’, where the native Indian populations lived, some argued
that these natives were part of the society of human race and that the acts of the
Spanish were therefore subject to natural law. This conquest could therefore not be
justified by the notion of ‘discovery’ or by grant of the Pope. (It is hard to discover
something that the local have already ‘found’)
The 17th and the 18th century
Here we began to see a clearer distinction between the jus naturales and jus gentium
– a modern international legal system began to take form. From this period of time
international law as we know develops. Leading figure:
- Dutchman Grotius (1583-1645) = made major contributions to the development
of international law and was instrumental in applying the natural law to the
conduct of international relations and developing the law of nations to make it a
practical tool for regulating a variety of areas of international relations.
Peace of Westphalia – 1648
The peace of Westphalia brought an end to the Thirty Years War and can be marked
as the birth of the international legal system. With the peace treaties of Westphalia,
the major European powers wanted to create an international order derived from
agreed rules and limits.
The objective of these peace treaties was to reduce transnational forces, like empire
and religion, and instead compartmentalize territory and individuals into sovereign
States of equal importance. From this moment on, the international society has been
a society of individual sovereign States.
The 19th century and the era of positivism
This regarded as the era of positivism. In this time the true source of law was not
morality, but state will. Therefore, state consent was very important in this era.
States could either express their will explicitly I the form of a treaty or implicitly by
customary practices. The consensual theory entails that unless a state has
consented to be bound by a rule, no international legal obligation exists, and the
state is able to act as it pleases. This means that, as opposed to natural law, there is
no universal legal system. But one that is fragmented and in which states are bound
by different legal obligations.
This was also a period in which the first multilateral treaties regulating armed conflicts
were concluded and conventions on the conduct of war.
- 1856 Declaration of Paris: legal limits to capture private property at sea.
- 1868 Declaration of St Petersburg: banned use of bullets and stipulated that
the only permissible aim of war is to defeat the armed forced of the enemy.
The two Hague Conferences in 1899 and 1907, that led to the adoption of
conventions on, respectively, the conduct of war and a permanent Court of
Arbitration.
,The interwar period (1919)
After World War I, an organization called the League of Nations was created, an
organization tasked with maintaining world peace. The League did not prohibit war
but tried to limit outbreaks by requiring states to submit potential destabilizing
disputes to one of a number of settlement mechanisms and withhold from starting a
war until a decision was made by that mechanism.
A major achievement of the interwar period was the establishment of the Permanent
Court of Justice (PJIC) in the Hague. This was the predecessor of the current
International Court of Justice (ICJ).
The period after the Second World War
This period was a time of major achievement in international law. The League of
Nations was succeeded by the United Nations (UN), which was entrusted with the
maintenance of international peace and security. The UN is built on the principles of
Westphalia and is 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 founding treaty of the UN is the Charter of the United Nations. Among other
things, the UN Charter brought about the following:
- It banned the use of force.
- It gave the Security Council the competence to maintain international peace
and security an to authorize forceful measures.
- It established the General Assembly where all members are represented and
through which all states can express their concerns. The Assembly played an
important role in a wide range of global interests, such as the decolonization
process. It also contributed to the development of international law by
establishing the International Law Commission (ILC), whose job was to
promote progressive development of international law and its codification.
- It replaces the PCIJ with the International Court of Justice, which gained a
more important role.
- It brought forth several international organizations, including the North Atlantic
Treaty Organization (NATO). The members of NATO agree to offer each other
mutual defense in the event of an attack by an external actor.
The European Union (EU) formed another motivation for member to avoid large-
scale conflicts. The EU expanded to what now stands at 28 Member States. The EU
consists of important institutions: the European Council, the Council of the European
Union, the European Parliament, the European Commission and the Court of Justice
of the European Union.
The Council of Europe was created to strengthen intergovernmental and inter-
parliamentary cooperation. It later adopted the European Convention on Human
Rights (ECHR). This remains the central instrument for the protection of human rights
in Europe. This Convention established the European Court of Human Rights
(ECtHR) in Strasbourg, which hears complaints from individual citizens and can
make binding decisions. Important regional organizations, for instance in America,
Southeast Asia and Africa, have also been created outside Europe. Examples are
the Pacific Alliance, the Association of Southeast Asian Nations and the African
Union.
, The present
Most international institutions that we know today were established to create a world
order based on Western values: open and free economic markets, increasing respect
for individual rights and institutional cooperation.
However, the Western-driven ‘liberal international legal order’ is now under stress. As
non-western countries, like China, are emerging, global shifts in economic power are
taking place and the power and influence of the West is diminishing. Next to
interstate competition, there also seem to be profound disagreements on important
issues about the means whereby states pursue their interests. Think of Russia’s
unlawful annexation of Crimea in 2014 or China’s policy of land-grab in the South
China Sea. This makes it more difficult for states to reach agreements to create new
legally binding global agreements on important issues. Instead, states decide to
make less ambitious non-binding global political agreements or legally binding
regional agreements with likeminded states.
The extensive institutional cooperation in Europe is more frequently criticized.
National policymakers can freely decide on increasingly fewer political issues. The
loss of national sovereignty and allegations of unjustified activism by the Court of
Justice of the European Union (CJEU) have also caused more dissatisfaction. This
was noticeable when the British people decided to leave the EU in June 2016.
The structure and nature of international law.
Since the 1648 Peace of Westphalia, the center of the international system has been
the sovereign state, and international society is first and foremost a society of
individual national states. It is best to consider international law from the perspective
of national law, as something that foresees the lawyers’ need for legal rules and
principles to complement those found in the national legal system.
National law regulates disputes between citizens of a sovereign state or between
citizens and the state. However, when the issue concerns the interest of more than
one state, national is not suitable for settling the dispute and one must find the
answer in international law.
International law therefore serves as a supplement to national law. It provides legal
guidelines where national law falls short.
There are two ways in which an issue becomes of interest to more than one
state:
1. When two or more states have a colliding interest in the substance of the
issue. The international character is derived from the content of the matter.
Concern use of force, jurisdiction and immunity or the creation of a new
independent state.
2. When one or more involved states have agreed in a treaty to turn the issue
into one of an international character. The international character is derived
from its form.
International environmental law of international trade law.
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