Public International Law
Learning 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.
Learning 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.
