International Law
Week 1 Nature and structure
A matter is an international issue: when it affects more than one state or states share a
common goal.
- It effects more than one state because of the content or vorm
International law of coexistence
International law of coexistence provides the legal answers to questions that are inherently
of interest to more than one state and is required to separate the powers of the sovereign
states and thereby uphold peaceful coexistence.
The international law of coexistence is focussed on how sovereign states interact among
each other and is therefore primarily horizontal.
International law of cooperation
The international law of cooperation provides the legal answers to issues that are not
inherently of interest to two or more States but have nevertheless become a matter of
international concern through the adoption of a treaty (treaties are international
agreements governed by international law).
The difference between the international law of coexistence and the international law of
cooperation is that the latter is optional for sovereign states. This means that states can
decide for themselves whether they want to turn matters that are initially governed by
national law into a matter of international law.
International legal obligations should be seen as a logical consequence of sovereignty. There
are several sovereign states, which justifies the existence of international law.
Monist and Dualist approach:
A dualistic approach will require that a ratified treaty is also transposed into national law.
The Netherlands has a moderate monistic system. There is therefore no need to transpose
the international regulation into the Dutch one. It is moderately monistic, in the sense that
the treaty must be published in order to be binding.
- Monist approach: With this approach, the state has national law, which states that
international law will have a direct effect in national law. Therefore, no further
action is needed after the ratification for the international to be directly
incorporated. This approach is based on the idea that the international law and
national law form one single legal system and are presumed to be coherent.
- Dualist approach: The international law has to be integrated in or transposed to
national law in order to be effective. This approach is based on the idea that
international law and national law are two separate legal systems that operate
independently from each other.
Problems:
, Monist: a problem the monist approach faces are that it is not
clear for the citizens, who only know their own law. It is also
harder to get states to sign. Which rule.
Dualist: a problem dualist approach faces is that an
international law will be interpreted differently from the
original content of the law. It can be messy who is in charge.
Every state can decide if takes the monist or the dualist approach.
The Netherlands is a mixed system, however mostly a monist state, because the two
systems work together. When the Netherlands sign something, they have also created this
international obligation and it will apply directly in the Netherlands.
Direct effect = is what article 93 from constitution explains.
Supremancy = International comes before national law
There are several key differences between international law and national law:
National law is drafted by a government; The legal subjects must follow this without being
able to choose whether or not to comply with certain rules. International law is built on
mutual acceptance and voluntarily subjecting oneself to rules. This is the main difference.
There is no organization that determines what law applies between countries, the countries
themselves do this.
1. The main difference between international law and national law is that international
law is based on the consent of states. The states pledge that they will obey the rules
that they made themselves. States can also decide not to give their consent when
they don’t agree with the treaty. By doing so, the state would not become a member
to that treaty and it would not have to obey its rules. In national law, on the other
hand, law officials make the rules and the citizens must obey these rules, regardless
of whether the citizens have given their consent. These law officials also make sure
that citizens who don’t obey the law, will be punished for it.
2. There is no separation of powers, no trias politica.
3. National law has a vertical effect (between states and its citizens), while
international law has a horizontal effect (between states that are equal to each
other).
4. The international laws help in maintaining international relations whereas the
national laws help in the sovereignty and development of the nation-states.
The issue of enforcement of international law
International law does not have the same enforcement system as national law (police,
administrative sanctions, judges). International law is therefore less enforceable. However,
there are international judges who are admissible to complaints. In addition, the
international obligations of states to each other are generally respected by the long-term
benefits and the importance of reputation.
Week 1 Nature and structure
A matter is an international issue: when it affects more than one state or states share a
common goal.
- It effects more than one state because of the content or vorm
International law of coexistence
International law of coexistence provides the legal answers to questions that are inherently
of interest to more than one state and is required to separate the powers of the sovereign
states and thereby uphold peaceful coexistence.
The international law of coexistence is focussed on how sovereign states interact among
each other and is therefore primarily horizontal.
International law of cooperation
The international law of cooperation provides the legal answers to issues that are not
inherently of interest to two or more States but have nevertheless become a matter of
international concern through the adoption of a treaty (treaties are international
agreements governed by international law).
The difference between the international law of coexistence and the international law of
cooperation is that the latter is optional for sovereign states. This means that states can
decide for themselves whether they want to turn matters that are initially governed by
national law into a matter of international law.
International legal obligations should be seen as a logical consequence of sovereignty. There
are several sovereign states, which justifies the existence of international law.
Monist and Dualist approach:
A dualistic approach will require that a ratified treaty is also transposed into national law.
The Netherlands has a moderate monistic system. There is therefore no need to transpose
the international regulation into the Dutch one. It is moderately monistic, in the sense that
the treaty must be published in order to be binding.
- Monist approach: With this approach, the state has national law, which states that
international law will have a direct effect in national law. Therefore, no further
action is needed after the ratification for the international to be directly
incorporated. This approach is based on the idea that the international law and
national law form one single legal system and are presumed to be coherent.
- Dualist approach: The international law has to be integrated in or transposed to
national law in order to be effective. This approach is based on the idea that
international law and national law are two separate legal systems that operate
independently from each other.
Problems:
, Monist: a problem the monist approach faces are that it is not
clear for the citizens, who only know their own law. It is also
harder to get states to sign. Which rule.
Dualist: a problem dualist approach faces is that an
international law will be interpreted differently from the
original content of the law. It can be messy who is in charge.
Every state can decide if takes the monist or the dualist approach.
The Netherlands is a mixed system, however mostly a monist state, because the two
systems work together. When the Netherlands sign something, they have also created this
international obligation and it will apply directly in the Netherlands.
Direct effect = is what article 93 from constitution explains.
Supremancy = International comes before national law
There are several key differences between international law and national law:
National law is drafted by a government; The legal subjects must follow this without being
able to choose whether or not to comply with certain rules. International law is built on
mutual acceptance and voluntarily subjecting oneself to rules. This is the main difference.
There is no organization that determines what law applies between countries, the countries
themselves do this.
1. The main difference between international law and national law is that international
law is based on the consent of states. The states pledge that they will obey the rules
that they made themselves. States can also decide not to give their consent when
they don’t agree with the treaty. By doing so, the state would not become a member
to that treaty and it would not have to obey its rules. In national law, on the other
hand, law officials make the rules and the citizens must obey these rules, regardless
of whether the citizens have given their consent. These law officials also make sure
that citizens who don’t obey the law, will be punished for it.
2. There is no separation of powers, no trias politica.
3. National law has a vertical effect (between states and its citizens), while
international law has a horizontal effect (between states that are equal to each
other).
4. The international laws help in maintaining international relations whereas the
national laws help in the sovereignty and development of the nation-states.
The issue of enforcement of international law
International law does not have the same enforcement system as national law (police,
administrative sanctions, judges). International law is therefore less enforceable. However,
there are international judges who are admissible to complaints. In addition, the
international obligations of states to each other are generally respected by the long-term
benefits and the importance of reputation.
