Inhoud
Week 1: Who is bound by international law and what is it? Subjects and sources................................2
Week 2: How is international law enforced? Legal responsibility and dispute settlement...................15
Week 3: What are some limitations and exceptions in international law? Jurisdiction and immunities
..............................................................................................................................................................28
Week 4: How might international law change? Uses of force..............................................................36
Seminar articles....................................................................................................................................43
Case Palestinian statehood...............................................................................................................43
Case Kosovo independence..............................................................................................................43
Case Al-Bashir - ICC...........................................................................................................................44
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,Week 1: Who is bound by international law and what is it? Subjects
and sources
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).
Dus:
- Legal rules
- Sovereign
- States
- Other subjects of international law
History of international law
The birth of international law: The peace of Westphalia in 1648
- It brought an end to the Thirty years war in Europe.
The peace of Westphalia is identified as:
o the beginning of international law because of the principles It has laid down.
Including the inviolability (onschendbaarheid) of borders
And
Non-interference in the domestic affairs of sovereign states (niet-inmenging in
de binnenlandse aangelegenheden van soevereine staten)
The UN is built upon these Westphalian principles:
- respect for the principle of equal rights
- self-determination of peoples (zelfbeschikking van volkeren)
- sovereign equality of all members
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,Features of international law (kenmerken)
- Sovereignty
Was born in 1648.
Sovereign states are the main actors in international law.
Think of a black box. Each state is a black box. Inside that box is the states territory,
people and politics.
Each state has an own black box and other states are not allowed to interfere with our
black box.
- Little organization
We don’t have a global police force that is acting when states violent international
law.
No global military etc.
- Legal cultural differences
Every state has an own idea of right.
So you can have an universal idea of right, but it can be undervalued when that idea
is practicing, due cultural differences.
- Politically innocent
International law is NOT politically innocent.
States make the law.
They can create international law for their interest.
International law was created to make colonization possible.
But als to make de-colonization possible.
So international law is not politically innocent.
- Co-existence
We just co-exist with each other (leven/bestaan in vrede naast elkaar)
States started to have ideas of cooperating(samenwerken) with each other.
In a simple way:
I want to send my letter to the Netherlands.
How does it get from Canada to the Netherlands?
Let’s create a system for post.
States are finding ways to co-operate with each other by using international law.
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,Sources of international law
- Treaties (primary source)
The most direct and formal way for states to create international law.
A treaty is the ONLY way for two or more state to enter into some sort of formal
relationship with each other.
THE BASE FOR A TREATY IS STATE CONSENT.
So only the consenting states are bound by the treaty.
The Vienna Convention (of 1969) = Verdrag van Wenen inzake het verdragenrecht
o Most authoritative set of rules regarding treaties (meest gezaghebbende)
Only 100 (+-) countries are party to the Vienna Convention BUT
The International Court of Justice (ICJ) accepts almost the entire treaty as
customary international law.
Article 2.1 says you can only speak of a treaty when:
There is an international agreement between states
In written form
And governed by international law (geregeld door internationaal recht)
2 important principles:
o Lex specialis
Means that a law governing a specific subjects matter overrules a more
general law.
Example: 3 countries sign a treaty of friendship, agreeing to do business. 2 of
those States also sign a treaty agreeing not to sell arms to one another.
That treaty between the 2 states is a specific treaty and goes first.
o Lex posterior
A younger law overrules an older law concerning a similar issue.
Newest treaty goes first.
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,Consent to be bound
A state is not bound to a treaty, if it does not first consent to be bound.
States are considered to be equal and sovereign.
When a state consents to be bound, it gives up some sovereignty to become a party
to the treaty. That’s why the state has to do it willingly.
But sometimes consent is irrelevant.
States are always bound to jus cogens even if they do not consent (peremptory law =
gebiedend).
Ways to consent to be bound
o Signature
o Exchange of instruments (= akten) constituting a treaty
Like letters.
State has to have the intention to bound itself to the content of the instrument.
o Ratification
Signing the treaty + fulfilling it’s own national legislative requirements.
o Accession
The act of state that accepts the offer/opportunity to become a party to a
treaty that is already negotiated and signed by other states.
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,Customary international law (primary source)
2 cumulative conditions:
- State practice
The practice is almost uniform.
All or almost all states agree with the practice.
*there are no rules about how much time it takes for a custom law to become
customary international law.
*statement of states thar are most affected by the custom, carry more weight in
figuring if something is customary international law.
- Opinio iuris
States honestly believe that there is an binding obligation that they are bound to.
It has to be a legal obligation, not a political incentive (incentive = motief).
Example:
The head of a state going to the funeral of the head of another state = state practice
but there is no opinio iuris.
EXCEPTION
A custom that violates jus cogens/peremptory norm, can never become customary
international law.
******
PERSISTENT OBJECTOR.
States have to consent to be bound.
So they have the right to raise their hands and say I never agreed about the custom.
‘’We are persistent objectors’’.
So every time the issue comes up you have to object.
*** When you have a treatie and the rules became a custom it’s called crystallization.
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,General principles of law (primary source)
General principles of law recognized by civilized nations.
Civilized = a nation that has reached an advanced state of legal development.
*domestic law = nationale wet
International law is underdeveloped compared to domestic law.
That’s why international courts and tribunals have borrowed general principles that occurs in
the domestic law of ALL or MANY individual states.
For example: the principle of good faith, liability for damages (aansprakelijkheid voor
schade), pacta sunt servanda (= Afspraken nakomen). etc.
Jus cogens (primary source)
For example
- Genocide
- Slavery
- Torture
- Crimes against humanity
- Aggression and the use of force
Decision by international organizations (secondary source)
Not a source of international law.
Judicial decisions (secondary source)
Not a source of international law. It only offers aid.
Unilateral legal action (secondary source)
= eenzijdige juridische actie.
Like a state that is vowing to never use nuclear weapons ever again.
No other states have to accept that, but other states can hold the state making the vow to
account afterwards.
Not a source of international law.
Teachings of (highly qualified) legal scholar (secondary sources)
Doctrine.
NOT a source of international law. It only offers aid.
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,Soft law
Often referred to as ‘’Guidelines’’, ‘’Principles’’, ‘’Code of Practice’’, ‘’Recommendations’’ and
‘’Declaration’’ = verklaring.
It’s NOT a source of law.
Hierarchy of sources
There is a distinction (= onderscheid) between primary and secondary sources.
They are equal in rank and status.
BUT EXCEPTION 1
Some norms are considered to be of greater importance.
Treaties may be void (= nietig) when they conflict with peremptory norms.
EXCEPTION 2
Erga omnes obligations are not merely (=slechts) owed to another states, but to the
international community as a whole.
*erga omnes = rights of obligations that are owed towards everyone.
For example
A property right is an erga omnes right and therefore enforceable against anybody infringing
that right.
EXCEPTION 3
UN-Charter obligations prevail (= voorrang) if they conflict with obligations under any other
international agreement.
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,Subjects of international law
- Actors
Any individual, body or entity that has an impact on international relations.
- Subjects
An individual, body of entity possessing international rights and duties.
Actors in international law
The international society is made up of individual sovereign states.
But they are not the only actors in international law.
Non-state actors have gained increasing legal importance since 1945.
The answer of the question to whom international law applies we have to look at ‘’legal
subjectivity’’ and ‘’legal personality’’.
- Legal personality = subjects
They represent the recognition of a group or individual.
Are capable of possessing, exercising and/or enforcing varied degrees of rights and
duties under international law.
They may also contribute to the creation of international law.
o Subjects of international law possess international rights and duties
o Subjects of international law have the capacity to engage in types of action,
e.g. conclude treaties, enter an international organization.
****Natural persons are not a creation of international law, because they have no
duties and the no capacity to enter an international organization.
Therefore: they are not subjects of international but they are OBJECTS (traditional
view)
o Full legal personality – traditional view
States have full legal personality.
o Partial legal personality – expanded view
International organizations
Individuals
Multi-national corporations
Insurgents (opstandelingen)
Etc.
**partial because the power is given by the states.
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, States
Because states are subjects of international law, it’s important to define what a state actually
is.
Criteria of statehood
4 cumulative criteria of the Montevideo Convention (1933)
- A permanent population
Enjoying exclusive relations of nationality.
- A defined territory
The ability to claim a territory.
- Government
Ability to exercise effective control over the territory.
- Capacity/ability to enter into relations with other states
For example to conclude(sluiten) treaties.
Theories of state recognition
- Declaratory theory
States that satisfy the four criteria, are a state.
Recognition is only a declaration of formal acceptance of the existing fact that de
recognized entity is already a state.
*if you are a state and lose one of the criteria, you remain a state.
So:
We have 4 legal requirements and if you satisfy those requirements you are a state.
If not, you are not a state.
- Constitutive theory
Says that there is a fifth criterion of statehood: the act of recognition.
You only a state if other state recognize you as a state.
***in practice
It is necessary that a sufficiently large number of states recognizes the entity as a
state.
If that entity is not recognized by a sufficient number of states, it cannot realistically
be a state.
Because initiating (aangaan van) diplomatic relations and treaty relations will be quite
difficult without recognition.
** UN membership is not a requirement for statehood, but it does provide strong
evidence of statehood.
**there is no entity that decides who is a state, even the UN.
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