International and European Law
Week 1: International Law, Subjects and Sources
This weeks learning goals:
1. What is international law, including some of its features?
2. What is international legal personality and who can have it?
3. What is a State?
4. What are the main sources of international law?
5. What are some legal techniques for resolving conflicts between custom and treaties,
and between treaties?
What is public international law?
International law is the totality of legal rules concerning the (sovereign) relations amongst
States, international organizations and other subjects of international law, including the
rights and duties of individuals that are relevant to the international community (or part
thereof). – Prof. Christian Walter.
Some features of international law:
1. Sovereign equality of States > The idea of sovereignty was born in 1648 out of
Treaty of Westphalia > 1648 was not a peaceful time; there were religious wars,
millions of people died. Representatives of the different sides came together and had
a massive diplomatic effort and negotiations to find a way to peace. They came up
with the idea that we still have today; they said that the way to peace is if we say that
sovereign states are the main actors in international law and ‘we’, the sovereign
states, are equal. We still have this idea today, which you can find in article 2(1) of
the UN Charter. Let’s start with the word ‘sovereign’. Think of a big black box. The
idea of sovereignty is that each state is a black box and inside that box is the state’s
territory and its people and politics. Each state tells the other states that this is their
black box, their business and the others are not allowed to interfere with their
sovereignty. This is the internal idea of sovereignty. If you step out of the box and you
look at the relationships amongst states, what does sovereignty mean? If each state
is sovereign and equal that means that one state can’t tell another state what
international law is. Each of the states get to decide which international law we are
bound by. And this is the fundamental difference between domestic and international
law. We as individual citizens don’t get to decide which law were bound by in the
Netherlands. We have the legislation and we know that this is the law were bound by.
No one asked for our consent. But under international law states consent to the
creation of international that will bind them. This idea of equality also means formal
equality; if you graduate from Tilburg University and you decide to work for the Dutch
government, and you’re at a UN general assembly meeting in the UN in New York
and they’re taking a vote on a resolution and you are representing the Netherlands >
then you get 1 vote. No matter the size of the country. So sovereign equality is the
idea of non-interference and formal equality; we each have to consent/agree that the
law binds us and we have formal equality.
2. Relatively little organization (e.g. no universal executive, parliament, court or
police). We don’t have a global police force that goes around enforcing international
law; or a universal court punishing states when they violate international law. We also
don’t have a global constitution/legislature/executive/military. We have this completely
horizontal system, with institutions like UN that are created by states when they want
to create them. And of course, that creates enforcement challenges that are different
from domestic law.
, 3. Legal practice (consent) matters for understanding the law. Another
consequence is that we have to look what the states are doing to figure out what the
law is.
4. Universal character in tension with legal cultural differences. This is another
feature of international law. We want international law to be universal, but states get
to consent which laws they’re bound by and even when you have a law that applies to
every state (nearly 200 states), you can’t prevent that states are going to disagree on
how those laws are interpreted. Think of the Mohammed cartoon controversy from
several years ago. Almost every state believes in the freedom of expression and
religion. But how each country understands those 2 rights to interact and when and
how they can be limited, can be different from each other, as we saw in this
controversy. So, you can have a universal idea like freedom of religion or expression,
but how it plays out in each country might be very different and might undermine the
idea that we have these universal values that we share.
5. Tension between law (not politically innocent) and politics. States make the law.
States are self-interested; they have an interest in advancing their goals; that means
that they can create international law that is unjust/not honorable. They can also
create international law that we can celebrate, for example: colonization. International
law was created to make (de)colonization possible. We can say that international law
is not politically innocent. We can advance the political interests of each state, but
that doesn't mean that we should collapse the distinction between law and politics.
The reason to argue to still think about international law as something different from
international politics is that states continue to make the distinction. Example: when
Putin annexed Crimea from Ukraine, many countries stood up and said that he
violated international law by using force and taking territory from a sovereign country.
Putin did not make a political argument in response. He said to not have violated the
territorial integrity of Ukraine, but to have respected the international right of self-
determination of the people of Crimea, which is an international concept. So
international law is something that is meaningful to states.
6. Move from co-existence to cooperation. If you look back at the last hundred years,
you see a really important shift. Back then states thought that international law exists
so that we can live side by side and get on with our own internal business = co-
existence is why we need international law. Around the turn of the 1900’s, states
started to have ideas of cooperation with each other. It started simple and it
developed over time; for example sending a letter from Canada to the Netherlands
required creating a postal union and rules regarding telecommunication.
Subjects of international law
Actors: any individual, body or entity that has an impact on international relations. For
example; Greta Thurnberg, Donald Trump, ISIS
Subjects: an individual, body or entity possessing international rights and duties under
international law. So, when the question arises whether someone is an international legal
subject or whether someone has international legal personality, the question actually is; does
this person or organization (like the UN) have rights or duties under international law? If the
answer is yes, then you have identified an international legal subject. If the answer is no,
then it is an international actor.
Capabilities of subjects varies: Reparations Advisory Opinion, ICJ (1949), 179:
Legal subjects “are not necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the community.” So states are creating international
law and they decide what they want to achieve through international law and how best to
achieve it.
Full international legal personality (subjects) – States decide the goal, create the law and
then they decide who’s going to enjoy rights and duties under international law. This is why
we call states full subjects of international law; they enjoy full international legal personality.
,This means they don’t have to show/prove their rights and duties. They say they’re a state
and everyone has to recognize them as a full subject of international law.
Partial legal personality (subjects) – international organizations, individuals, multi-national
corporations, insurgents etc. in these cases they have to prove that they are partial subjects.
They have to point at international law with their rights or duties.
What is a State?
States: Montevideo Convention (1933), article 1 – elements:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with other states
Example: Is the Principality of Sealand a state?(Prince Roy and Princess Joan Bates)
Is Sealand a state? >
a) permanent population? > yes, it has 20-25 people living on this platform in the middle of
the North-sea. The Bates family or people that they hired have permanently lived
on/occupied this platform since 1967.
b) a defined territory? > It is a platform on the North-sea that’s 12 km from England and it’s
4000 square meters.
c) government? > In 1967 prince Roy declared Sealand a sovereign state. He declared
himself the head of state and government. Later he and others drafted a constitution and
then they made a national anthem and currency etc. eventually there were 155.000 Sealand
passports in the world.
d) capacity to enter into relations with other states? > they have had official relations with
UK and Germany.
To decide whether Sealand is a state, a few questions come to mind;
Population and territory – minimum requirement?
Borders – can they be contested? Acquired by force?
Government – effective control required? Democratic?
Independent legal relations with other States?
In this case of Sealand you can answer it one way; there is the UN convention on the law of
the sea which says Sealand falls within the territorial waters of the UK (so it’s part of the UK)
and the convention says you can’t have an artificial territory calling itself a state. But this
doesn't answer all the questions that are raised.
What if 150 States recognized Sealand as a State?
Declaratory versus constitutive approaches to statehood. Those who say that it
doesn't change anything if 150 states recognized Sealand as a state, belong to the
declaratory approaches. The declaratory approach to statehood says we have the
definition of a state in the Montevideo Convention, there are 4 legal requirements and
as soon as you satisfy those you are a state. No matter how many countries
recognize you as a state, what matters is if you fulfilled the requirements in the article
in the Montevideo Convention. The constitutive approach says it absolutely matters
if other states recognize you. This is what really matters.
International law adopts the declaratory approach. This raises the question why we
would care about recognition? One of the answers is; maybe recognition is evidence
or a sign that Sealand has fulfilled the requirements.
Sources of international law:
Statute of the International Court of Justice (1945), article 38(1):
‘1. The Court...shall apply:
a. international conventions... > another word for conventions is treaties.
b. international custom...
, c. the general principles of law...
These 3 are the sources of international law
d. ....judicial decisions and the teachings of the most highly qualified publicists...as
subsidiary means for the determination of rules of law.’
Treaties
Vienna Convention on the Law of Treaties (1969) (VCLT)article 2(1)(a):
"Treaty" means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation;
- A treaty can be in 1 or more document and it doesn't matter what you call the
instrument (protocol, convention, treaty, agreement etc.). The way of figuring out
whether you’re looking at an international treaty is you have to read the document
and ask yourself if this document between states is governed by international law; are
they creating rights and obligations amongst themselves through this instrument, are
they indicating their consent to be bound or is this just a political declaration. So, you
have to read the document to see if it is a treaty.
- Law-making treaties versus treaty-contracts.
Law making treaty is a treaty that states draft and it concerns an issue that they
think is a concern to the entire community. It’s a treaty that they draft hoping that
all states will consent to be bound by. The goal is universal ratification to a law-
making treaty.
Treaty-contracts > smaller number of states coming together to discuss
something that is a concern really only to them > the goal is to come to an
agreement amongst the small group of states to address a very specific issue. It
might be just between 2 states. It could concern something as simple as the use
of a river or where to draw the boundary between 2 territories > looks more like a
contract.
- Treaties regarded as superior to custom for many writers owing to express State
consent. Some people think treaties are the most important source of law. An
argument for this is: international law is about state consent; its law that you're only
bound by if you’ve consented to it and treaties are the best way to figure out what
states have consented to.
Customary law:
Customary law is for the most part not written down anywhere. This source of law requires 2
legal elements to be satisfied. You have to do the work of arguing that these elements are
satisfied before you can say that customary international law exists (that binds all states);
1. Opinio juris (State acts performed with belief of States that it is a legal obligation) >
you have to show that this state believes that there is a legal right/obligation; you
have to show the believe that the state thinks that it is bound by international law.
2. State Practice: you have to show that states behave in a way that proves that they
think have this legal obligation/that they're behaving in compliance with this law. You
have to do it for almost every state in the world to show that there is customary law.
You have to look at the opinion juris and state practice of as many states as you can,
and argue that there is:
- widespread and virtually uniform state practice
- time: may be for a longer period but also instant custom
- particularly of most affected States
Consequence? Binding upon all States
Unless: persistent objector
Exception: jus cogens/peremptory norm (e.g. slavery) > this is customary law
that has a special status (it might be in a treaty) > basic idea is that there are
some values/issues that are so fundamentally important and defend our sense of
