Hoorcollege 1 - The nature and structure of international law
International law history
- pre greek civilisations
- ancient greek and roman times: origin of certain principles and customs
- colonialism 15th century
- catholic church: international institutions
- end of 16th century: popes gradual loss power
- Hugo Gratius publishing “The freedom of the seas” and “On the law of War
and Peace"
- end of the Thirty years war due to peace of Westphalia: beginning international law
- john locke, jean bodin, thomas hobbes
- after WWI: Permanent Court of International Justice (PCIJ) in The Hague
- after WWII and cold war: UN and replacing of PCIJ to ICJ
- independence of colonies
Post World War two the international institutions were setup to create a world bases on
Western values, most notably open and free economic markets, increasing respect for state
sovereignty and individual right, and institutions cooperation. This system is now under
stress.
UN
- The international Monetary Fund (IMF)
- The international Bank for Reconstruction and Development (the world bank)
- World Trade Organisation (WTO)
- used to be: General Agreement on Tariffs and Trade (GATT)
- World Health Organisation (WHO)
EU
- European Council
- the council of the European Union
- the European Parliament
- the European Commission
- Court of Justice of the European Union (CJEU)
- European Convention on Human Rights (ECHR)
- European Court of Human Rights (ECtHR)
Natural law vs. positivism
- natural law (jus naturale): based on the idea that God or nature has given us certain
rights
- positive law (jus gentium): written rules, rights
,Main differences with national law
- In domestic law you have state, nationals and companies. In every state you have a
constitution.
- In International law you have regulations between relations from states.
- No hierarchy in international law, there is in national law (police etc.)
Monism:
- a single and coherent legal system
- direct effect of law
- supremacy
- International law directly applicable in national legal system
- Hank Kelse: international law and national law form a single legal system because
they both desire their validity from the same ultimate source, the Grundnorm
Dualism:
- two separate legal systems that operate independently
- national legislation adopted to give effect to international law
Pluralism:
- relationship between the tho systems is more complex and diverse
Why do we have IL?
- dependency of international community of each other
- inadequacy of national law, immunities
- mutual interest
- coexistence
- For example: air travel, trade, telecommunications, use of the sea, creation of
states, treatment of ambassadors
- cooperations
- For example: human rights, international crimes, protection of the
environment, prohibition on the use of force,
Two key notions that explain how international law works
1. sovereignty
2. consent
Why do states obey IL? (most of the time)
- desire for order and predictability over chaos
- consent and obedience
- legitimacy
- enforcement mechanisms
, The international law of coexistence (general international law)
- contains the legal answers to questions that are inherently of interest to more than
one state and required to separate the powers of the sovereign states and thereby
uphold peaceful coexistence.
- horizontal, mainly concerned with the manner in which sovereign states interact with
and between each other.
- seeks to ensure states can pursue their different and separate interests in a way that
respects the sovereignty and rights of other states.
- stable and not subject to much change.
- law-creation in the process of resolving issues in which the interest of two or more
states collide.
The international law of cooperation
- the issues are of an international character because treaties are international
agreements governed by international law.
- younger that the international law of coexistence
- EU law for example
- optional in that states are free to turn a matter previously dealt with by national law
into a matter of international law.
- deals with wider societal goals, such as climate change.
- often requires legally binding agreements by states.
Critiques of contemporary international law
- feminist argue that there is an inherent bias in international law in favour of men, in
part because international law, like international relations, is largely based on
experiences and overall ideas of man
- to scholars as TWAIL, the the type of globalization we experience today primary
takes the form of a unified globe economic space that has had a devastating effect
on the welfare of peoples in the developed world.
- TWAIL are mostly critical of the role played by international economic law and
global institutions like the WTO and the IMF that are accuses of sustaining
the dominating North’s continued economic exploitation of the less developed
states in the South
Lecture 2 - The Sources of International Law
Article 38 ICJ Statute, the sources of international law
1. international conventions, whether general or particular. Treaties.
a. The content is precisely determinable, easy to find, difficult to amend and
binding only to States party to it
2. international custom, as evidence of a general practice accepted as law
a. This is flexible, can adapt to changing circumstances, is generally binding on
all States, is vague, and its existence is difficult to prove.
International law history
- pre greek civilisations
- ancient greek and roman times: origin of certain principles and customs
- colonialism 15th century
- catholic church: international institutions
- end of 16th century: popes gradual loss power
- Hugo Gratius publishing “The freedom of the seas” and “On the law of War
and Peace"
- end of the Thirty years war due to peace of Westphalia: beginning international law
- john locke, jean bodin, thomas hobbes
- after WWI: Permanent Court of International Justice (PCIJ) in The Hague
- after WWII and cold war: UN and replacing of PCIJ to ICJ
- independence of colonies
Post World War two the international institutions were setup to create a world bases on
Western values, most notably open and free economic markets, increasing respect for state
sovereignty and individual right, and institutions cooperation. This system is now under
stress.
UN
- The international Monetary Fund (IMF)
- The international Bank for Reconstruction and Development (the world bank)
- World Trade Organisation (WTO)
- used to be: General Agreement on Tariffs and Trade (GATT)
- World Health Organisation (WHO)
EU
- European Council
- the council of the European Union
- the European Parliament
- the European Commission
- Court of Justice of the European Union (CJEU)
- European Convention on Human Rights (ECHR)
- European Court of Human Rights (ECtHR)
Natural law vs. positivism
- natural law (jus naturale): based on the idea that God or nature has given us certain
rights
- positive law (jus gentium): written rules, rights
,Main differences with national law
- In domestic law you have state, nationals and companies. In every state you have a
constitution.
- In International law you have regulations between relations from states.
- No hierarchy in international law, there is in national law (police etc.)
Monism:
- a single and coherent legal system
- direct effect of law
- supremacy
- International law directly applicable in national legal system
- Hank Kelse: international law and national law form a single legal system because
they both desire their validity from the same ultimate source, the Grundnorm
Dualism:
- two separate legal systems that operate independently
- national legislation adopted to give effect to international law
Pluralism:
- relationship between the tho systems is more complex and diverse
Why do we have IL?
- dependency of international community of each other
- inadequacy of national law, immunities
- mutual interest
- coexistence
- For example: air travel, trade, telecommunications, use of the sea, creation of
states, treatment of ambassadors
- cooperations
- For example: human rights, international crimes, protection of the
environment, prohibition on the use of force,
Two key notions that explain how international law works
1. sovereignty
2. consent
Why do states obey IL? (most of the time)
- desire for order and predictability over chaos
- consent and obedience
- legitimacy
- enforcement mechanisms
, The international law of coexistence (general international law)
- contains the legal answers to questions that are inherently of interest to more than
one state and required to separate the powers of the sovereign states and thereby
uphold peaceful coexistence.
- horizontal, mainly concerned with the manner in which sovereign states interact with
and between each other.
- seeks to ensure states can pursue their different and separate interests in a way that
respects the sovereignty and rights of other states.
- stable and not subject to much change.
- law-creation in the process of resolving issues in which the interest of two or more
states collide.
The international law of cooperation
- the issues are of an international character because treaties are international
agreements governed by international law.
- younger that the international law of coexistence
- EU law for example
- optional in that states are free to turn a matter previously dealt with by national law
into a matter of international law.
- deals with wider societal goals, such as climate change.
- often requires legally binding agreements by states.
Critiques of contemporary international law
- feminist argue that there is an inherent bias in international law in favour of men, in
part because international law, like international relations, is largely based on
experiences and overall ideas of man
- to scholars as TWAIL, the the type of globalization we experience today primary
takes the form of a unified globe economic space that has had a devastating effect
on the welfare of peoples in the developed world.
- TWAIL are mostly critical of the role played by international economic law and
global institutions like the WTO and the IMF that are accuses of sustaining
the dominating North’s continued economic exploitation of the less developed
states in the South
Lecture 2 - The Sources of International Law
Article 38 ICJ Statute, the sources of international law
1. international conventions, whether general or particular. Treaties.
a. The content is precisely determinable, easy to find, difficult to amend and
binding only to States party to it
2. international custom, as evidence of a general practice accepted as law
a. This is flexible, can adapt to changing circumstances, is generally binding on
all States, is vague, and its existence is difficult to prove.
