Hoorcolleges international law
Hoorcollege 1
The structure and sources of international law
The changing structure of IL
- Peace of Westphalia which created a decentralized system of sovereign
states.
- Europe
- Treaties that recognize states
- Equality between all states
- Territorial sovereignty
- State consent as the basis of legal obligations
- No intervention
- Religion was very important
- Fairness, morals,… the distance from natural law to positive law
Classic IL reflected that structure
- The international law system
o Used to have only one actor as its subject (the state)
o No central government
No parliament (informal law-making process, scarce legal
rules, no hierarchy of norms
No judiciary (self-help, often by military means)
o Structure is risky but it defines how IL was born and evolved
Modern international system
- The state is the central actor
- New actors have emerged and revolve around it, since approximately the
end of WOI
- Individuals can be held responsible for crimes under IL
- International organizations are subjects of IL
- NGO not fully integrated
Modern IL reflects the new structure of the new IL system
- New subjects of IL
- Hierarchy of legal rules
- Expansion of areas of regulation
o Coexistence and cooperation
All states need to cooperate, if one doesn’t, it’s useless.
- Creation of institutional methods of enforcement
- UN charter, international court of justice, main UN court
o Rules about how cases can be brought to the court
1
, Sources of IL
- Sources trough which we see consent exists
- Art. 38 ICJ statute
o Reflection of the sources of IL
o Statement of a specific court
o Primary sources and secondary sources
Primary (a-c)
Agreement between states, binding on parties (a)
International custom (customary law) (b)
General principals of law recognized by civilized nations
(c)
Sources that are binding
Secondary (d)
Subjects to the provisions of art. 59,…
It can help us to determine what the rules are.
No hierarchy of sources
- The sources are autonomous
o Rules can be applied simultaneously
o Obligations of dual nature can be of great importance
- Conflicts of laws are settled in accordance with two legal principles
o A treaty says X and another one says Y
o Lex posteriori derogat priori
The latest agreement is the one that will be used
o Lex speciali derogate generali
The most specific law is the one that will be used
A hierarchy of rules
- Art. 103 UN charter: obligations under the UN charter prevail over other
international law obligations
- Jus cogens: peremptory norms of international law from which no
derogation is possible, such as the prohibitions of aggression, crimes
against humanity, racial discrimination, torture and slavery. Main legal
effects:
o Rules contrary to them are null and void
o Art. 53 VCLT
o Art. 64 VCLT
o Norms of IL that are accepted and recognized by the international
community of states, as a norm of which no derogation,…?
o A treaty that conflicts with a jus cogens norm, is void
- Obligations erga omnes
o Important for every state
o All norms that are jus cogens are erga omnes, but there are also
other norms that can be erga omnes.
Customary law
- A difficult topic, because
o Custom is an informal (and thus imprecise) process of law creation
2
Hoorcollege 1
The structure and sources of international law
The changing structure of IL
- Peace of Westphalia which created a decentralized system of sovereign
states.
- Europe
- Treaties that recognize states
- Equality between all states
- Territorial sovereignty
- State consent as the basis of legal obligations
- No intervention
- Religion was very important
- Fairness, morals,… the distance from natural law to positive law
Classic IL reflected that structure
- The international law system
o Used to have only one actor as its subject (the state)
o No central government
No parliament (informal law-making process, scarce legal
rules, no hierarchy of norms
No judiciary (self-help, often by military means)
o Structure is risky but it defines how IL was born and evolved
Modern international system
- The state is the central actor
- New actors have emerged and revolve around it, since approximately the
end of WOI
- Individuals can be held responsible for crimes under IL
- International organizations are subjects of IL
- NGO not fully integrated
Modern IL reflects the new structure of the new IL system
- New subjects of IL
- Hierarchy of legal rules
- Expansion of areas of regulation
o Coexistence and cooperation
All states need to cooperate, if one doesn’t, it’s useless.
- Creation of institutional methods of enforcement
- UN charter, international court of justice, main UN court
o Rules about how cases can be brought to the court
1
, Sources of IL
- Sources trough which we see consent exists
- Art. 38 ICJ statute
o Reflection of the sources of IL
o Statement of a specific court
o Primary sources and secondary sources
Primary (a-c)
Agreement between states, binding on parties (a)
International custom (customary law) (b)
General principals of law recognized by civilized nations
(c)
Sources that are binding
Secondary (d)
Subjects to the provisions of art. 59,…
It can help us to determine what the rules are.
No hierarchy of sources
- The sources are autonomous
o Rules can be applied simultaneously
o Obligations of dual nature can be of great importance
- Conflicts of laws are settled in accordance with two legal principles
o A treaty says X and another one says Y
o Lex posteriori derogat priori
The latest agreement is the one that will be used
o Lex speciali derogate generali
The most specific law is the one that will be used
A hierarchy of rules
- Art. 103 UN charter: obligations under the UN charter prevail over other
international law obligations
- Jus cogens: peremptory norms of international law from which no
derogation is possible, such as the prohibitions of aggression, crimes
against humanity, racial discrimination, torture and slavery. Main legal
effects:
o Rules contrary to them are null and void
o Art. 53 VCLT
o Art. 64 VCLT
o Norms of IL that are accepted and recognized by the international
community of states, as a norm of which no derogation,…?
o A treaty that conflicts with a jus cogens norm, is void
- Obligations erga omnes
o Important for every state
o All norms that are jus cogens are erga omnes, but there are also
other norms that can be erga omnes.
Customary law
- A difficult topic, because
o Custom is an informal (and thus imprecise) process of law creation
2
