Literature Public International Law
Week 1
Chapter 1. The setting of international law
International law is not just the law that deals with law and peace, or with
genocide and human rights; it also encompasses rules on trade, on protection of
the environment, on shipping, and on the protection of refugees. We will focus on
public international law; this is to regulate relations between states. Many of
the rules of international law also have an effect on companies, individuals, or
minority groups.
History of public international law
Started in the seventeenth century for several reasons:
1. Europe was thought to be congruent to the world at large. Individuals
tended to think of their empires as single entities, with the consequence
that law was largely conceptualized as internal.
2. The Peace of Westphalia, this marked the end of the Thirty Years War.
3. Publication of Hugo Grotius’ On the Law of War and Peace.
Imperialism and colonialism are also connected to international law. The
emergence of early modern international law is comprehensible in the light of the
struggle between European powers for influence elsewhere in the world.
Colonialism was about trade and economic gain, so international law is one way,
or another connected to the economy. For the second part of the twentieth
century, the cases that would reach the ICJ tended to be those involving the
precise limits of territorial ownership.
In short, much of international law is related to the global economy.
International law is the legal system regulating the global economy, in much the
same way as it has been observed that domestic legal systems and law school
from the late-nineteenth century.
The international legal system
The absence of a single overarching authority is perhaps the most
noteworthy characteristic of international law. International law can be seen as
‘positive morality’: it is more or less binding on states, but as a matter of
morality, not as a matter of law. But how does international law function if it has
no sovereign authority?
Various explanations for this state of affairs:
States themselves make international law ; they have little incentive to
break it.
Explanation of bureaucratic inertia: a civil servant who routinely
implements an international legal norm five days a week will not all of a
sudden tell herself to stop doing so.
Considerations of reciprocity; If state A starts to mistreat B’s citizens, B will
do the same.
Role of legitimacy: a rule that is generally perceived as useful and that has
been created in the proper manner may be seen as legitimate and thereby
exercise a ‘compliance pull’.
States are few in number and are attached to their territories ; they cannot
escape from each other.
International law is not completely devoid of sanctions.
,Globalization, global governance, and international law
Globalization affects more than the economy aloe: it also affects cultural and
social relations, it has given religious sentiments a new boost, and it may also
have sparked nationalist and regional feelings. Globalization has also come to be
accompanied by what is sometimes referred to as global governance: the
exercise of authority, on the global level, outside regular legal structures. These
two make it clear that many of the classic concepts are categories of
international law may have become outdated.
Chapter 2. The Making of International Law
International law is predominantly made by states. Since states are considered to
be sovereign, it follows that there is no authority above them; and if there is no
authority above them, it follows that law can only be made with their consent. It
does not have a specific document specifying how it is made. In this chapter the
sources of international law will be discussed.
Two ships: Lotus and Wimbledon
Lotus Case
2 August 1926, the steamships Boz-Kourt (Turkish) and Lotus (French) collided in
the high seas of the Turkish coast. The Boz-Kourt was cut in two, eight Turkish
nationals died, and the Turkish authorities started criminal proceedings against Lt
Demons, first officer of the Lotus, as well as the captain of the Boz-Kourt, Hassan
Bey.
Both were found guilty by the Criminal Court of Istanbul and sentenced to a
fine and some month’s imprisonment.
The French authorities claimed that Turkey lacked the required jurisdiction to
prosecute a foreigner for acts committed outside Turkish territory. Turkey and
France agreed to take the matter to the PCIJ.
Question: Had Turkey, in instituting proceedings against Lt Demons, acted in
conflict with the principles of international law?
The Court discussed: International law governs relations between independent
States. The rules of law binding upon States therefore emanate from their own
free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established to regulate the relations. Restrictions
upon the independence of States cannot therefore be presumed.
No prohibition could be found in international law, Court decided that Turkey
had not violated international law.
The Court here laid down the idea of international law as a permissive system;
behaviour must be considered permitted unless and until it is prohibited. The
alternative, as argued by France, would have been to regard international law as
a prohibitive system, where behaviour is only lawful if there is a rule that
specifically allows it.
Wimbledon Case
Four years earlier, in its first ever contentious decision (Wimbledon case), the PCIJ
had strongly suggested the outlines of a positivist, permissive international legal
,order. The Kiel Canal was declared an international waterway; Germany could not
block the passage. When Germany refused access in 1921, to the steamer
Wimbledon flying the English flag and chartered by a French company, some of
those victorious powers started proceedings. By refusing, they claimed that
Germany violated Article 380 of the Versailles Treaty.
Argument of Germany: the Versailles Treaty was difficult to reconcile with
sovereignty. Conclusion a Treat could not be equated with giving up sovereignty.
How is it even possible to have law in a system of sovereign states?
Court shot down Germany’s argument. It disagreed with the position that
sovereignty and international law were fundamentally irreconcilable, and instead
suggested that sovereignty and international law went hand in hand.
The two cases together establish that in a horizontal order of sovereign equals
international law is by no means impossible; indeed, it is precisely because states
are sovereign that they can make international law. But these rules can only be
made on the basis of consent. In other words; international law is often deemed a
positivist system in that rules are created by consent of the states themselves,
and do not flow from elsewhere.
Article 38 ICJ Statute
The PCIJ was replaced by the ICJ, Article 38(1) ICJ does not establish a rigid
hierarchy of sources, in particular when it comes to the relationship between
customary law and treaties. Two elements of hierarchy can be seen in article 38:
1. Judicial decisions and the writings of the most highly qualified publicists
are listed as subsidiary means only, and the reference to article 59 ICJ
Statute further makes it clear that judicial decisions have no precedent
effect in international law. customary law and treaties are recognised
as 'lex specialis (E-Lesson)
2. There is also general agreement among international lawyers that general
principles of law have as their main function the filling of gaps.
general principles of law are recognized as 'lex generalis (E-lesson)
Treaties Article 38(1)(a)
If states want to make a deal, the only instrument at their disposal is the Treaty.
Treaties can come in all forms and sizes, they can be bilateral and multilateral;
they can be highly solemn and cast in language with biblical overtones, but also
highly informal.
Over the centuries rules have been developed in customary international law on
the conclusion of treaties, effects and application of treaties, their validity and
termination. These rules have been codified in VCLT.
e-lesson info
Treaties (or conventions), as referred to in Article 38(1)(a) of the ICJ Statute, are
agreements which are concluded between subjects of international law. Treaties
are based on the principles of consent and pacta und servanda. The pacta
sunt servanda principle is a customary rule of international law and has been
codified in Article 26 VCLT, which stipulates that every treaty in force is binding
upon the parties to it and must be performed by them in good faith. The VCLT
regulates the law on treaties between states and most provisions therein have
obtained the status of customary international law.
, A state becomes bound by a treaty once it signs and ratifies or accedes to the
treaty.
If a state has signed but not (yet) ratified or acceded to a treaty, the state
is still bound by the object and purpose of the treaty.
See article 18 VCLT: A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
o (a) It has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a
party to the treaty; or
o (b) It has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry into
force is not unduly delayed.”
Peremptory norms
There are only a few limitations on the formulation and conclusion of a treaty,
which are stipulated in Articles 46-53 of the VCLT. It is important to note that a
treaty is void if it conflicts with a 'peremptory norm' (also referred to as a rule
of jus cogens) of international law.
See Article 53 VCLT: "A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character.”
A peremptory norm/ Jus cogens of international law is a rule of customary
international law which cannot be derogated from.
Examples of peremptory norms are the prohibition of genocide, torture and
apartheid.
Jus cogens norms are legal norms from which no derogation is permitted.
Thus, they are the highest substantive norms in public international law
Reservations
Sometimes states limit their acceptance of a treaty by submitting a unilateral
statement purporting to exclude or to modify the legal obligations following from
the treaty. This is called a reservation. Nowadays, the general rule is that
reservations are allowed upon signature, ratification or accession, unless the
treaty concerned provides otherwise. Furthermore, a reservation may never be
incompatible with the object and purpose of the treaty see articles 19-23
VCLT.
Interpretation
In case of a dispute regarding the implications of a treaty provision for a
particular situation, the treaty needs to be interpreted (and thereafter applied).
Unless the treaty in question itself contains provisions concerning its
interpretation, the provisions of the VCLT on treaty interpretation apply. Article
31 VCLT states that: "A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.” Article 32 VCLT provides further
guidance on the interpretation of treaties.
Week 1
Chapter 1. The setting of international law
International law is not just the law that deals with law and peace, or with
genocide and human rights; it also encompasses rules on trade, on protection of
the environment, on shipping, and on the protection of refugees. We will focus on
public international law; this is to regulate relations between states. Many of
the rules of international law also have an effect on companies, individuals, or
minority groups.
History of public international law
Started in the seventeenth century for several reasons:
1. Europe was thought to be congruent to the world at large. Individuals
tended to think of their empires as single entities, with the consequence
that law was largely conceptualized as internal.
2. The Peace of Westphalia, this marked the end of the Thirty Years War.
3. Publication of Hugo Grotius’ On the Law of War and Peace.
Imperialism and colonialism are also connected to international law. The
emergence of early modern international law is comprehensible in the light of the
struggle between European powers for influence elsewhere in the world.
Colonialism was about trade and economic gain, so international law is one way,
or another connected to the economy. For the second part of the twentieth
century, the cases that would reach the ICJ tended to be those involving the
precise limits of territorial ownership.
In short, much of international law is related to the global economy.
International law is the legal system regulating the global economy, in much the
same way as it has been observed that domestic legal systems and law school
from the late-nineteenth century.
The international legal system
The absence of a single overarching authority is perhaps the most
noteworthy characteristic of international law. International law can be seen as
‘positive morality’: it is more or less binding on states, but as a matter of
morality, not as a matter of law. But how does international law function if it has
no sovereign authority?
Various explanations for this state of affairs:
States themselves make international law ; they have little incentive to
break it.
Explanation of bureaucratic inertia: a civil servant who routinely
implements an international legal norm five days a week will not all of a
sudden tell herself to stop doing so.
Considerations of reciprocity; If state A starts to mistreat B’s citizens, B will
do the same.
Role of legitimacy: a rule that is generally perceived as useful and that has
been created in the proper manner may be seen as legitimate and thereby
exercise a ‘compliance pull’.
States are few in number and are attached to their territories ; they cannot
escape from each other.
International law is not completely devoid of sanctions.
,Globalization, global governance, and international law
Globalization affects more than the economy aloe: it also affects cultural and
social relations, it has given religious sentiments a new boost, and it may also
have sparked nationalist and regional feelings. Globalization has also come to be
accompanied by what is sometimes referred to as global governance: the
exercise of authority, on the global level, outside regular legal structures. These
two make it clear that many of the classic concepts are categories of
international law may have become outdated.
Chapter 2. The Making of International Law
International law is predominantly made by states. Since states are considered to
be sovereign, it follows that there is no authority above them; and if there is no
authority above them, it follows that law can only be made with their consent. It
does not have a specific document specifying how it is made. In this chapter the
sources of international law will be discussed.
Two ships: Lotus and Wimbledon
Lotus Case
2 August 1926, the steamships Boz-Kourt (Turkish) and Lotus (French) collided in
the high seas of the Turkish coast. The Boz-Kourt was cut in two, eight Turkish
nationals died, and the Turkish authorities started criminal proceedings against Lt
Demons, first officer of the Lotus, as well as the captain of the Boz-Kourt, Hassan
Bey.
Both were found guilty by the Criminal Court of Istanbul and sentenced to a
fine and some month’s imprisonment.
The French authorities claimed that Turkey lacked the required jurisdiction to
prosecute a foreigner for acts committed outside Turkish territory. Turkey and
France agreed to take the matter to the PCIJ.
Question: Had Turkey, in instituting proceedings against Lt Demons, acted in
conflict with the principles of international law?
The Court discussed: International law governs relations between independent
States. The rules of law binding upon States therefore emanate from their own
free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established to regulate the relations. Restrictions
upon the independence of States cannot therefore be presumed.
No prohibition could be found in international law, Court decided that Turkey
had not violated international law.
The Court here laid down the idea of international law as a permissive system;
behaviour must be considered permitted unless and until it is prohibited. The
alternative, as argued by France, would have been to regard international law as
a prohibitive system, where behaviour is only lawful if there is a rule that
specifically allows it.
Wimbledon Case
Four years earlier, in its first ever contentious decision (Wimbledon case), the PCIJ
had strongly suggested the outlines of a positivist, permissive international legal
,order. The Kiel Canal was declared an international waterway; Germany could not
block the passage. When Germany refused access in 1921, to the steamer
Wimbledon flying the English flag and chartered by a French company, some of
those victorious powers started proceedings. By refusing, they claimed that
Germany violated Article 380 of the Versailles Treaty.
Argument of Germany: the Versailles Treaty was difficult to reconcile with
sovereignty. Conclusion a Treat could not be equated with giving up sovereignty.
How is it even possible to have law in a system of sovereign states?
Court shot down Germany’s argument. It disagreed with the position that
sovereignty and international law were fundamentally irreconcilable, and instead
suggested that sovereignty and international law went hand in hand.
The two cases together establish that in a horizontal order of sovereign equals
international law is by no means impossible; indeed, it is precisely because states
are sovereign that they can make international law. But these rules can only be
made on the basis of consent. In other words; international law is often deemed a
positivist system in that rules are created by consent of the states themselves,
and do not flow from elsewhere.
Article 38 ICJ Statute
The PCIJ was replaced by the ICJ, Article 38(1) ICJ does not establish a rigid
hierarchy of sources, in particular when it comes to the relationship between
customary law and treaties. Two elements of hierarchy can be seen in article 38:
1. Judicial decisions and the writings of the most highly qualified publicists
are listed as subsidiary means only, and the reference to article 59 ICJ
Statute further makes it clear that judicial decisions have no precedent
effect in international law. customary law and treaties are recognised
as 'lex specialis (E-Lesson)
2. There is also general agreement among international lawyers that general
principles of law have as their main function the filling of gaps.
general principles of law are recognized as 'lex generalis (E-lesson)
Treaties Article 38(1)(a)
If states want to make a deal, the only instrument at their disposal is the Treaty.
Treaties can come in all forms and sizes, they can be bilateral and multilateral;
they can be highly solemn and cast in language with biblical overtones, but also
highly informal.
Over the centuries rules have been developed in customary international law on
the conclusion of treaties, effects and application of treaties, their validity and
termination. These rules have been codified in VCLT.
e-lesson info
Treaties (or conventions), as referred to in Article 38(1)(a) of the ICJ Statute, are
agreements which are concluded between subjects of international law. Treaties
are based on the principles of consent and pacta und servanda. The pacta
sunt servanda principle is a customary rule of international law and has been
codified in Article 26 VCLT, which stipulates that every treaty in force is binding
upon the parties to it and must be performed by them in good faith. The VCLT
regulates the law on treaties between states and most provisions therein have
obtained the status of customary international law.
, A state becomes bound by a treaty once it signs and ratifies or accedes to the
treaty.
If a state has signed but not (yet) ratified or acceded to a treaty, the state
is still bound by the object and purpose of the treaty.
See article 18 VCLT: A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
o (a) It has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a
party to the treaty; or
o (b) It has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry into
force is not unduly delayed.”
Peremptory norms
There are only a few limitations on the formulation and conclusion of a treaty,
which are stipulated in Articles 46-53 of the VCLT. It is important to note that a
treaty is void if it conflicts with a 'peremptory norm' (also referred to as a rule
of jus cogens) of international law.
See Article 53 VCLT: "A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character.”
A peremptory norm/ Jus cogens of international law is a rule of customary
international law which cannot be derogated from.
Examples of peremptory norms are the prohibition of genocide, torture and
apartheid.
Jus cogens norms are legal norms from which no derogation is permitted.
Thus, they are the highest substantive norms in public international law
Reservations
Sometimes states limit their acceptance of a treaty by submitting a unilateral
statement purporting to exclude or to modify the legal obligations following from
the treaty. This is called a reservation. Nowadays, the general rule is that
reservations are allowed upon signature, ratification or accession, unless the
treaty concerned provides otherwise. Furthermore, a reservation may never be
incompatible with the object and purpose of the treaty see articles 19-23
VCLT.
Interpretation
In case of a dispute regarding the implications of a treaty provision for a
particular situation, the treaty needs to be interpreted (and thereafter applied).
Unless the treaty in question itself contains provisions concerning its
interpretation, the provisions of the VCLT on treaty interpretation apply. Article
31 VCLT states that: "A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.” Article 32 VCLT provides further
guidance on the interpretation of treaties.
