Cato Sluyts
EU LAW AND INTERNATIONAL LAW
PROF ATTILA M. TANZI & CO
LECTURE 1: WHAT IS INTERNATIONAL LAW (02/10/2023)
Topics that will be discussed
• Definition of international law
• International law under a historical perspective
• Effectiveness of international rules
• Spontaneous observance and forced compliance
• Main characteristics of the international legal order
• International law compared with domestic law
What is international law
• International law is a set of rules made by States in order to regulate the legal
relations between them;
• It constraints the exercise of both external sovereignty and internal sovereignty of
States;
• Expansion of international law: increasing number of areas involved, increasing
number of subjects to be regulated (international organizations, individuals, NGOs,
companies);
• Public international law v. private international law (conflict of laws): what is the
difference?
• International law is the evolving constraint of both external and internal sovereign
states.
Why do States undertake international obligations?
• States produce international rules providing for self-constraints in exchange for a
corresponding advantage;
• Key role of reciprocity (quid pro quo) in the development of international law;
• For example, rules on the treatment of aliens: State A will treat the citizens of State
B in a certain way, assuming that State B will treat citizen of State A in the same way.
Example: the 1906 Rio Grande Agreement
Why do States breach international law?
• The large majority of international rules are silently complied with every day;
• States sometimes infringe obligations stemming from rules of their own making, or
reject the same rule altogether;
• Problem of coordination within the State: those who negotiate international rules
are different from those who apply it.
• In fact: “Many of the things international law tries to do have to be done at the
national level”
1
,Cato Sluyts
International Law and Politics
• «Policy considerations, although they differ from ‘rules’, are an integral part of that
decision making process which we call international law; the assessment of so called
extralegal considerations is part of the legal process, just as is reference to the
accumulation of past decisions and current norms. A refusal to acknowledge political
and social factors cannot keep law neutral, for even such refusal is not without
political and social consequence. There is no avoiding the essential relationship
between law and politics»
• «International law and international politics cohabit the same conceptual space.
Together they comprise the rules and the reality of the ‘international system’, an
intellectual construct that lawyers, political scientists, and policymakers use to
describe the world they study and seek to manipulate. As a distinguished group of
international lawyers and a growing number of political scientists have recognized, it
makes little sense to study one without the other»
Key Features of International Law
of a centralised Legislator
Lack (UN General Assembly is
not a Parliament!)
of compulsory
jurisdictional of Courts
Lack (jurisdiction is based on
consent!)
of a centralised and
mandatory enforcement
Lack mechanism (there is no
international “army”!)
Is there a problem of effectiveness of the international legal system?
• “The health of the law (...) will depend largely on the health of the society, on its
ability to contain explosive forces and mobilize creative ones for general welfare”
Henkin, How Nations Behave (2nd edn, Columbia UP 1979), 314.
• Every legal system presents problems of effectiveness, insofar as in every legal
system legal subject and actors violates the rules. According to both naturalist and
positivist thinkers, the validity of rules does not depend on their effectiveness.
• In International Law, however:
o Repeated non-compliance with a rule, accompanied by the acquiescence of
the other actors involved, may in the long run lead to a change or
replacement of that rule (ex iniuria oritur jus);
o The lack of centralised enforcement mechanisms, the preponderant role of
sovereignty and consent, and the complexity and ambiguity of some
regulatory regimes are all factors that, in comparison to domestic systems,
may contribute to a lower overall effectiveness of the international legal
system.
History of International law
Traditional International law
2
,Cato Sluyts
• Peace of Westphalia (1648):
o 30 Years war.
o Euro-Centric and homogenous International Society, based on the principle
of sovereign equality of States (superiores non recognoscentes).
o Various efforts to challenge this model: e.g. Napoleonic wars, Bolshevik
revolution, III Reich.
Contemporary international law (1)
• End of Second World War (1945): 3 winning states (UK, USA, URSS) conceive the
United Nations to avoid another world conflict;
• Roosevelt and Churchill aim at establishing an international legal order based on
prohibition of use of force, protection of human rights, free trade and protection of
foreign investments.
Contemporary international Law (2)
• «[T]here is no reason why a regional organization of Europe should in any way
conflict with the world organization of the United Nations. On the contrary, I believe
that the larger synthesis will only survive if it is founded upon coherent natural
groupings». Churchill, Mr. Winston Churchill speaking in Zurich 19th 09 1946
• «[W]e cannot live alone, at peace: […] our own well-being is
dependent on the well-being of other nations far away. […] We
have learned to be citizens of the world, members of the
human community». Fourth Inaugural Address of Franklin D.
Roosevelt.
Contemporary international Law (3)
UN Charter, Article 1; The Purposes of the United Nations are:
• To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace;
• To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace;
• To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion; and
• To be a center for harmonizing the actions of nations in the attainment of these
common ends.
Contemporary international Law (4)
Article 2 of the UN Charter; The Organization is based on the principle of the sovereign
equality of all its Members.
3
, Cato Sluyts
• All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance
with the present Charter.
• All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
• All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
• All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement action.
• The Organization shall ensure that states which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
• Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter VII.
Can we Speake of an International Constitution?
The UN Charter can rightly be said to have been
an important component of the constitutional
principles of contemporary international law.
Yet the key constitutional principles of the
international society date back to way before the
UN Charter.
Principle of Sovereign Equality of States as the
Foundational Principle of the Community
End of Cold War
• Fall of Berlin Wall (1989)
• Change of position of many member States within the UN
• Back to homogeneity of values within the international community – concept of
collect interests (environment, human rights, free trade)
Iraq War (1990)
• First time Chapter VII of the UN Charter is invoked
Rwanda and Former Yugoslavia (1994)
• Challenges of International Community in dealing with ethnic and religious tensions
• Gradual formation of international criminal law
4
EU LAW AND INTERNATIONAL LAW
PROF ATTILA M. TANZI & CO
LECTURE 1: WHAT IS INTERNATIONAL LAW (02/10/2023)
Topics that will be discussed
• Definition of international law
• International law under a historical perspective
• Effectiveness of international rules
• Spontaneous observance and forced compliance
• Main characteristics of the international legal order
• International law compared with domestic law
What is international law
• International law is a set of rules made by States in order to regulate the legal
relations between them;
• It constraints the exercise of both external sovereignty and internal sovereignty of
States;
• Expansion of international law: increasing number of areas involved, increasing
number of subjects to be regulated (international organizations, individuals, NGOs,
companies);
• Public international law v. private international law (conflict of laws): what is the
difference?
• International law is the evolving constraint of both external and internal sovereign
states.
Why do States undertake international obligations?
• States produce international rules providing for self-constraints in exchange for a
corresponding advantage;
• Key role of reciprocity (quid pro quo) in the development of international law;
• For example, rules on the treatment of aliens: State A will treat the citizens of State
B in a certain way, assuming that State B will treat citizen of State A in the same way.
Example: the 1906 Rio Grande Agreement
Why do States breach international law?
• The large majority of international rules are silently complied with every day;
• States sometimes infringe obligations stemming from rules of their own making, or
reject the same rule altogether;
• Problem of coordination within the State: those who negotiate international rules
are different from those who apply it.
• In fact: “Many of the things international law tries to do have to be done at the
national level”
1
,Cato Sluyts
International Law and Politics
• «Policy considerations, although they differ from ‘rules’, are an integral part of that
decision making process which we call international law; the assessment of so called
extralegal considerations is part of the legal process, just as is reference to the
accumulation of past decisions and current norms. A refusal to acknowledge political
and social factors cannot keep law neutral, for even such refusal is not without
political and social consequence. There is no avoiding the essential relationship
between law and politics»
• «International law and international politics cohabit the same conceptual space.
Together they comprise the rules and the reality of the ‘international system’, an
intellectual construct that lawyers, political scientists, and policymakers use to
describe the world they study and seek to manipulate. As a distinguished group of
international lawyers and a growing number of political scientists have recognized, it
makes little sense to study one without the other»
Key Features of International Law
of a centralised Legislator
Lack (UN General Assembly is
not a Parliament!)
of compulsory
jurisdictional of Courts
Lack (jurisdiction is based on
consent!)
of a centralised and
mandatory enforcement
Lack mechanism (there is no
international “army”!)
Is there a problem of effectiveness of the international legal system?
• “The health of the law (...) will depend largely on the health of the society, on its
ability to contain explosive forces and mobilize creative ones for general welfare”
Henkin, How Nations Behave (2nd edn, Columbia UP 1979), 314.
• Every legal system presents problems of effectiveness, insofar as in every legal
system legal subject and actors violates the rules. According to both naturalist and
positivist thinkers, the validity of rules does not depend on their effectiveness.
• In International Law, however:
o Repeated non-compliance with a rule, accompanied by the acquiescence of
the other actors involved, may in the long run lead to a change or
replacement of that rule (ex iniuria oritur jus);
o The lack of centralised enforcement mechanisms, the preponderant role of
sovereignty and consent, and the complexity and ambiguity of some
regulatory regimes are all factors that, in comparison to domestic systems,
may contribute to a lower overall effectiveness of the international legal
system.
History of International law
Traditional International law
2
,Cato Sluyts
• Peace of Westphalia (1648):
o 30 Years war.
o Euro-Centric and homogenous International Society, based on the principle
of sovereign equality of States (superiores non recognoscentes).
o Various efforts to challenge this model: e.g. Napoleonic wars, Bolshevik
revolution, III Reich.
Contemporary international law (1)
• End of Second World War (1945): 3 winning states (UK, USA, URSS) conceive the
United Nations to avoid another world conflict;
• Roosevelt and Churchill aim at establishing an international legal order based on
prohibition of use of force, protection of human rights, free trade and protection of
foreign investments.
Contemporary international Law (2)
• «[T]here is no reason why a regional organization of Europe should in any way
conflict with the world organization of the United Nations. On the contrary, I believe
that the larger synthesis will only survive if it is founded upon coherent natural
groupings». Churchill, Mr. Winston Churchill speaking in Zurich 19th 09 1946
• «[W]e cannot live alone, at peace: […] our own well-being is
dependent on the well-being of other nations far away. […] We
have learned to be citizens of the world, members of the
human community». Fourth Inaugural Address of Franklin D.
Roosevelt.
Contemporary international Law (3)
UN Charter, Article 1; The Purposes of the United Nations are:
• To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace;
• To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace;
• To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion; and
• To be a center for harmonizing the actions of nations in the attainment of these
common ends.
Contemporary international Law (4)
Article 2 of the UN Charter; The Organization is based on the principle of the sovereign
equality of all its Members.
3
, Cato Sluyts
• All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance
with the present Charter.
• All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
• All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
• All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or enforcement action.
• The Organization shall ensure that states which are not Members of the United
Nations act in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
• Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter VII.
Can we Speake of an International Constitution?
The UN Charter can rightly be said to have been
an important component of the constitutional
principles of contemporary international law.
Yet the key constitutional principles of the
international society date back to way before the
UN Charter.
Principle of Sovereign Equality of States as the
Foundational Principle of the Community
End of Cold War
• Fall of Berlin Wall (1989)
• Change of position of many member States within the UN
• Back to homogeneity of values within the international community – concept of
collect interests (environment, human rights, free trade)
Iraq War (1990)
• First time Chapter VII of the UN Charter is invoked
Rwanda and Former Yugoslavia (1994)
• Challenges of International Community in dealing with ethnic and religious tensions
• Gradual formation of international criminal law
4
