Samenvatting Public International Law, ISBN: 9780198828723 Public International Law

EXAM Public International Law
CLASS 1 NATURE AND STRUCTURE
History of IL
- Europe of the Middle Ages:
o universal political and religious forces (Holy Roman Empire,
The Catholic Church); a lot of influence of the Pope
o natural law
o colonialism
- 17th and 18th centuries:
o Contours of a modern legal system arise
o Hugo Grotius (On the Law of War and Peace, The Freedom of
the Seas)
- Peace of Wesphalia 1648: Peace of Munster + Treaties of Munster
and Osnabruck
o Birth of international legal system
o Reduce powers of empire and religion
o Consolidation of nation states in Europe (state became the
primary source of authority)
- 19th century: positivism
o State will = only source of law
o Consensual theory: no international legal obligation exists
until a state consents
o 1865 International Telegraph Union, 1874 Universal Postal
Union
- Interbellum
o 1919 League of Nations; keep states from resorting to war
o Permanent Court of International Justice
- After WW II
o Nuremburg and Tokyo tribunals
o Globalisation
 9/11
 Multiplication of actors
 Global government
o Charter of the UN: ban on use of force
o Establishment of UNSC and UNGA
 Decolonisaton and self-determination
o NATO. ECtHR, EU
- Present:
o Western-driven international legal order shows signs of
breaking up> has become multipolar
 China
 BRICS countries
o Brexit

,Structure of IL
- Two ways:
o IL of coexistence: necessary
 states have colliding interests in the substance of the
issue; issues that are inherently of interest to more than
one State
 territory; recognition of new states; principles of
treaty law; principles on state responsibility; use
of force; etc.
 horizontal: not about the exercise or constitution
of IL
o IL of cooperation: ‘optional’
 the involved states have agreed in a treaty to turn the
issue into one of an international character;
collaboration
 environmental law; international economic law
(trade); EU-law
- Sovereignty: state has supreme power over territory, may not be
subject to jurisdiction of other states
o International legal obligations are a logical consequence;
sovereignty of all states can only be upheld by having basic
international rules that dictate the international relationships
Domestic law vs. International Law: International law asserts its
supremacy over national law
- National law:
o The relationship between the state and its citizens/ between
the citizens of the sovereign state
o Vertical structure and separation of powers: trias politica
o Based on obedience
- International law:
o Relationship between different states
o Horizontal: no central authority
o Based on consent
o Implication in national legal systems:
 Monism: international and national law form one single
legal order
 International law can be applied directly in the
national system
 The international norm prevails in the case of
conflict
 Dualism: international and national law form two
seperate legal systems that operate independently

,  National legislation ratificates international law in
order for it to be effective; IL needs to translated
into national legal system
 National norm prevails when a conflict arises
 Pluralism: system can have components of monism and
dualism
 Netherlands: moderate monist system
 art 93 94 Dutch Constitution
 International law prevails, but only when it comes
to universally binding previsions (binding on
everyone)
CLASS 2: SOURCES
- Sources of International Law
o Article 38 ICJ Statute
 International conventions }
 International custom } primary sources –
law creating
 General principles of law }
 Judicial decisions, teachings of scholars (secondary
source – law identifying)
- International conventions/ Treaties: art. 38 (1) (a)
o Pacta sund servanda art 26
o Multilateral treaty: larger group of states – Bilateral: two
states
o Vienna Convention on the Law of Treaties; VCLT 1969
 Art. 2.1 (a): definition of a treaty
 Oral agreements are binding , but not ‘treaties’
(Great belt)
 ICJ: the instrument should create rights/
obligations under IL
 Art. 6-18: formation of treaties
 Negotiation:
o Art. 7: a person with full powers may
conclude a treaty; by virtue of their function
 Heads of state, heads of government,
ministers of foreign affairs
 Heads of diplomatic missions
 Representatives to an international
organisation
 Adoption
 Expression of consent: art. 11
o Signing art. 12-14: definitive signature
o Ratification art 14-16: subsequent
confirmation