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Lecture 1 VMO StudentsExam 10-3-2018
3 hours for 100 points
Two parts
1. Open questions: case study and essay questions (60%)
2. Multiple choice plus motivation (40%)
Use the IRAC method (document on Lawweb)
I = Issue
R = Rules (legal rules, cases)
A = Application (or analysis for essay questions)
C = Conclusion
Revision: The International Legal Order
Can be found in E-lesson 1-7
Changing Structure of International Law
Some aspects of public international law have been the seem for the past years. However, other
aspects of public international law been changed or is changing. And some are changing to such an
extent that we don’t know what it would be in a decade or two.
International law is changing because of the world is changing – primarily due to globalization.
There is an e-lesson about the changing structure of international law, where there is an
Article mentioned by professor Hey;
The rules of the game are changing – while the game continues, but also while other
aspects of the game remain unchanged. For example, Law of Treaties;
There are two normative patterns coexisting, namely the Inter-State pattern and the
common interest pattern.
An example of a common interest pattern is the Genocide Convention or the Convention against
Torture. It does not only include interests of particular States, but it is a common interest. It evolves
erga omnes obligations. It is not only the one or the other, both are coexisting
Especially when considering reservations. Especially reservations to Multilateral treaties with a
humanitarian nature. It evolves various human rights treaties or the convention against Torture
and Genocide.
,What has changed (and continues to evolve)?
Nature of the problems, issues – different approaches required;
Actors involved – moving from State actors only to also having non-State actors;
Sources – from something being clearly Law to also including Soft Law, something that is not
entirely law;
Role of State consent – to rules, or to procedure?
So, within this dual reality, interstate interest and common interest, what type of issues, problems,
conflicts, dilemmas are international law dealing with?
I. Matters concerning State interests (some interests shared, others conflicting). For example,
China’s position in South China sea.
II. Matters concerning common interest lie for example climate change. It is very difficult to find
appropriate institutions mechanisms to deal with them, to define them (substantively), how to
agree to deal with them, to actively address, manage them. If not solving all issues
conclusively.
The problems require an integrative (not fragmented) & interdisciplinary approaches. A particular
interest can expand to a common interest like refugees.
State actors remain dominant, but non-State actors are increasingly involved – in various capacities.
International law was first only about State-actors. Non-State actors, however, are participating in the
international legal order:
International organizations – according to the ICJ, they have international legal personality
(Reparation for Injuries). Under international law, they have rights and responsibilities.
However, there are some questions about their accountability;
Civil society/ non-governmental organizations (NGO’s) – they can submit amicus curiae briefs
(e.g. WTO), participate as observers in meetings. However, there are also questions about
their accountability. For example, Shell against Greenpeace;
Private sector – for example, multinational corporations which operate transnational. Think of
public or private companies. Not only limited to a national jurisdiction as a result of
globalization;
Individuals – natural persons have rights, but also obligations under international law. The
impact was felt at local level and individuals can make (public) influence at the global level.
Consider many examples where non-state actors are performing public functions/ exercising public
authority – that previously belonged only to the domain of State actors.
The sources of international law – thus, where can the law on (insert issue) be found – are
increasingly surrounded with ambiguity and uncertainty
Traditional source doctrine – Treaties, customary international law, general principles of law
and subsidiary sources: case law and writings of learned authors (Article 38 Statute ICJ). They
are legally binding, formal, positive law, not necessary in writing and made by States, mostly
for States;
Beyond this, there is a growing body of instruments called soft law or legally relevant. They
are in writing: format can be very formal and can look legal. They are not legally binding, but
not without political and legal influence. In fact, can be highly influential. Their creation
involves State and non-State actors.
An example is the Universal Declaration of the Human Rights. The General Assembly
of the United Nations has adopted the Universal Declaration. They can not make
legally binding decisions. Only the UN Security Council can do that.
The changing role of State-consent
What States consent to has actually changed. They can’t consent to everything anymore, what they
consent to is now a procedure.
, The structural change within the international legal order are resulting in uncertainty and opposition,
especially when interstate interests clash with common interests.
Much of what we are dealing with in public international law is not conventional black letter
law.
Exam practice
Use examples in order to fulfill the A from the IRAC-method (application). Especially in essay type
questions.
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