Introduction International Law/European Law
Week 1
Features of international law:
1. Peace of Westphalia: In the peace treaties of Westphalia there was brought an
end to the Thirty Years War, which is marked as ‘the birth’ of international Law.
From then on it was tried to create an international order from a multiplicity of
‘states’ of equal legal importance.
2. Relatively little organization: e.g. no universal executive, parliament, court or
police?
3. Legal practice (consent) matters for understanding the law.
4. Universal character in tension with legal cultural differences.
5. Tension between law and politics.
6. Move from co-existence to cooperation.
Actors (no legal personality): influencing international law (greenpeace, ISIS, ILA)
Subjects (international legal personality): are influenced by international law
(ICRC, NATO, AU)
States are primary very very important
Io’s are secondary very very important
Sources of International Law
Article 38 of the Statue of the International Court of Justice
Sources which the ICJ will apply are:
1. International conventions (treaty’s)=law creating/primary
2. International custom=law creating/primary
3. The general principles of law recognized by civilized nations=law
creating/primary
4. Judicial decisions and scholarly contributions/the ILC=law
identifying/secondary
International customary law arises when a particular way of behaving is 1. Followed as a
general practice among states (objective-state practice) and 2. Accepted by those
states as legally binding (subjective-the belief the practice is legally binding)=OPINIO
JURIS. The first characteristic requires three elements: consistency (small exceptions
are allowed), generality (it depends on which states are using it) and duration (instant
custom is also possible, like the reaction on terrorism). The consequence is that it will
,be binding upon all states (unless there is a persistent objector (emerging custom or a
jus cogens).
General principles: these are so generally recognized that their existence under
international law must be assumed (good faith, pacta sunt servanda, abuse of rights,
liability for damages). This is useful for cases which could otherwise not be decided.
There is also no survey of all legal systems required, but there is no consensus on
generality.
Judicial decisions are only binding on the parties to the case. Case law from the PCIJ
and the ICJ shows that unilateral statements by state representatives can create
obligations under international law.
Hierarchy of sources
Apart from the distinction between primary and secondary sources of law, all legal
sources carry the same legal weight. If a treaty and a custom will have a conflict, the
treaty will prevail, because a state has more deliberately chosen for a treaty than for a
custom. There are three exceptions to this equality:
1. Peremptory norms (jus cogens). The substantive rules of conduct that prohibit
what has come to be seen as intolerable because of the threat they present to
states and their people.
2. Obligations erga omnes. These are described as obligations which are owed by
states towards the community of states as a whole. In contrast to the former,
there is a list of obligations.
3. Obligations under the UN Charter.
When there is a conflict between two treaties, this will be solved by the following rules:
1. Lex specialis (the more detailed treaty prevails);
2. Lex posterior (the latter of the treaties prevails).
Soft law refers to commitments undertaken by states that are not legally binding.
Hard law, on the contrary, refers to commitments which are legally binding.
ICC (International Criminal Court):
-Established by a treaty, the Rome Statue, which entered into force in 2002 (125 State
Parties).
Why should we punish?
According to Imannuel Kant we have to punish because it gives 1. retribution
(deontological). In this way we duly express the outrage of the international community
at these crimes. The moral necessity of proportionate punishment (cardinal or ordinal?).
Cardinal proportionality sets absolute measures for punishment that is proportional to
, a given crime; ordinal proportionality requires only that more serious crimes be
punished more severely than less serious crimes.
Another reason why we should punish is 2. deterrence (Jeremy Bentham, teological).
We have general and special deterrence. People are seen as rational actors who take in
account the available options of convicting a crime. Does this create fear or rule of law?
Other reasons are: 3. rehabilitation and 4. education.
Treaty law: these are rules for making, interpreting and ending agreements (treaties).
The rules for written treaties are in the Vienna Convention, which bounds every state to
the rules, even if they haven’t ratified this treaty.
Constituent treaty: a treaty that establishes an international organization.
Treaty: an international agreement governed by international law concluded by two or
more international subjects with treaty-making capacity.
How to recognise a treaty?:
Words that indicate legal obligation are: ‘shall’, ‘rights’, ‘oblige’ and ‘must’. Content and
circumstances are also important.
Pacta sunt servanda (agreements must be kept): states must honour their treaty-
based obligations. Other states, however, are not bound to this treaty (third states).
International law is based on consent.
Signing vs ratification. A treaty can be signed or ratified. Most of the time it is first
signed and afterwards ratified. If 1. it is not ratified (but signed) or 2. it is ratified but not
entered into force, the principal of good faith requires a state to operate in line with the
treaty.
Reservations: these are terms on which the states wish to not be bound to in the treaty.
They are prohibited in 3 situations: 1. If the treaty itself prohibits it 2. If the treaty
prohibits reservations to the particular provision the state wants a reservation for 3. Or if
the reservation violates the original purpose of the treaty. If so, the reservation does
not have legal force. States can object to the reservations of other states.
Amendment and modification: amendment is always possible. If there are no rules in
the treaty the amendment rules of the Vienna Convention will apply. It is called
modification if one state wants to modify a treaty, but others don’t. In a multilateral
treaty 2 or more states can modify the terms of a treaty if the treaty allows them to. They
are not allowed to negatively influence the other states or the purpose of the treaty.
Termination and withdrawal. A treaty can terminate for all state parties. This can be
done if: 1. A new jus cogens law emerges 2. The purpose is fulfilled or 3. If it is only
meant to exist for a certain period of time or if the state parties consist to this.
Week 1
Features of international law:
1. Peace of Westphalia: In the peace treaties of Westphalia there was brought an
end to the Thirty Years War, which is marked as ‘the birth’ of international Law.
From then on it was tried to create an international order from a multiplicity of
‘states’ of equal legal importance.
2. Relatively little organization: e.g. no universal executive, parliament, court or
police?
3. Legal practice (consent) matters for understanding the law.
4. Universal character in tension with legal cultural differences.
5. Tension between law and politics.
6. Move from co-existence to cooperation.
Actors (no legal personality): influencing international law (greenpeace, ISIS, ILA)
Subjects (international legal personality): are influenced by international law
(ICRC, NATO, AU)
States are primary very very important
Io’s are secondary very very important
Sources of International Law
Article 38 of the Statue of the International Court of Justice
Sources which the ICJ will apply are:
1. International conventions (treaty’s)=law creating/primary
2. International custom=law creating/primary
3. The general principles of law recognized by civilized nations=law
creating/primary
4. Judicial decisions and scholarly contributions/the ILC=law
identifying/secondary
International customary law arises when a particular way of behaving is 1. Followed as a
general practice among states (objective-state practice) and 2. Accepted by those
states as legally binding (subjective-the belief the practice is legally binding)=OPINIO
JURIS. The first characteristic requires three elements: consistency (small exceptions
are allowed), generality (it depends on which states are using it) and duration (instant
custom is also possible, like the reaction on terrorism). The consequence is that it will
,be binding upon all states (unless there is a persistent objector (emerging custom or a
jus cogens).
General principles: these are so generally recognized that their existence under
international law must be assumed (good faith, pacta sunt servanda, abuse of rights,
liability for damages). This is useful for cases which could otherwise not be decided.
There is also no survey of all legal systems required, but there is no consensus on
generality.
Judicial decisions are only binding on the parties to the case. Case law from the PCIJ
and the ICJ shows that unilateral statements by state representatives can create
obligations under international law.
Hierarchy of sources
Apart from the distinction between primary and secondary sources of law, all legal
sources carry the same legal weight. If a treaty and a custom will have a conflict, the
treaty will prevail, because a state has more deliberately chosen for a treaty than for a
custom. There are three exceptions to this equality:
1. Peremptory norms (jus cogens). The substantive rules of conduct that prohibit
what has come to be seen as intolerable because of the threat they present to
states and their people.
2. Obligations erga omnes. These are described as obligations which are owed by
states towards the community of states as a whole. In contrast to the former,
there is a list of obligations.
3. Obligations under the UN Charter.
When there is a conflict between two treaties, this will be solved by the following rules:
1. Lex specialis (the more detailed treaty prevails);
2. Lex posterior (the latter of the treaties prevails).
Soft law refers to commitments undertaken by states that are not legally binding.
Hard law, on the contrary, refers to commitments which are legally binding.
ICC (International Criminal Court):
-Established by a treaty, the Rome Statue, which entered into force in 2002 (125 State
Parties).
Why should we punish?
According to Imannuel Kant we have to punish because it gives 1. retribution
(deontological). In this way we duly express the outrage of the international community
at these crimes. The moral necessity of proportionate punishment (cardinal or ordinal?).
Cardinal proportionality sets absolute measures for punishment that is proportional to
, a given crime; ordinal proportionality requires only that more serious crimes be
punished more severely than less serious crimes.
Another reason why we should punish is 2. deterrence (Jeremy Bentham, teological).
We have general and special deterrence. People are seen as rational actors who take in
account the available options of convicting a crime. Does this create fear or rule of law?
Other reasons are: 3. rehabilitation and 4. education.
Treaty law: these are rules for making, interpreting and ending agreements (treaties).
The rules for written treaties are in the Vienna Convention, which bounds every state to
the rules, even if they haven’t ratified this treaty.
Constituent treaty: a treaty that establishes an international organization.
Treaty: an international agreement governed by international law concluded by two or
more international subjects with treaty-making capacity.
How to recognise a treaty?:
Words that indicate legal obligation are: ‘shall’, ‘rights’, ‘oblige’ and ‘must’. Content and
circumstances are also important.
Pacta sunt servanda (agreements must be kept): states must honour their treaty-
based obligations. Other states, however, are not bound to this treaty (third states).
International law is based on consent.
Signing vs ratification. A treaty can be signed or ratified. Most of the time it is first
signed and afterwards ratified. If 1. it is not ratified (but signed) or 2. it is ratified but not
entered into force, the principal of good faith requires a state to operate in line with the
treaty.
Reservations: these are terms on which the states wish to not be bound to in the treaty.
They are prohibited in 3 situations: 1. If the treaty itself prohibits it 2. If the treaty
prohibits reservations to the particular provision the state wants a reservation for 3. Or if
the reservation violates the original purpose of the treaty. If so, the reservation does
not have legal force. States can object to the reservations of other states.
Amendment and modification: amendment is always possible. If there are no rules in
the treaty the amendment rules of the Vienna Convention will apply. It is called
modification if one state wants to modify a treaty, but others don’t. In a multilateral
treaty 2 or more states can modify the terms of a treaty if the treaty allows them to. They
are not allowed to negatively influence the other states or the purpose of the treaty.
Termination and withdrawal. A treaty can terminate for all state parties. This can be
done if: 1. A new jus cogens law emerges 2. The purpose is fulfilled or 3. If it is only
meant to exist for a certain period of time or if the state parties consist to this.
