SUMMARY INTERNATIONAL LAW
Chapter 1: Foundations and structure of international law
Public international law= legal system that deals with issues of concern to more than 1 state
§1: A brief history of international law
The 1648 Peace of Westphalia:
- A crucial turning point in the history and development of international law
- The idea was to reduce the powers of transnational forces, like empire
and religion, and instead compartmentalize territory and individuals into
sovereign states
- To conclude a 30-year war that had destroyed continental Europe
- Created a decentralized system of sovereign States
- Main features of this international system:
o Legal equality of States
o Territorial sovereignty
o Non-intervention
o State consent as the basis of legal
obligation The 19th century and the era of positivism:
- Natural law= law that derives from the nature/ God
- Legal positivism= law whereby the state consent is the only true source of law
- Consensual theory= unless a state has consented to be bound by a rule, no
international legal obligation exists and the state remains entitled to act as it
pleases
The interwar period:
- 1919: creation of League of Nations
o = an organization tasked with maintaining world peace
- PCIJ was established in the
Hague Period after the 2nd WW
- League of Nations was replaced by UN, which was entrusted with the
maintenance of international peace and security
- UN is based on ‘Westphalian principles’:
o Equal rights
o Self-determination
o Sovereign equality
- Founding treaty of the UN introduced a ban on the use of force and gave a
collective organ (the SC) the competence to maintain international peace
and security and, if necessary, to authorize forceful measures
- In the General Assembly all MS are represented
- The PCIJ was replaced by the current ICJ
§2: The modern international law system
More actors came into the system
State remains the central actor, but new actors have emerged and revolve around it,
, since approximately the end of WW I
More states
TC (transnational cooperations)
NGO’s (non-governmental organizations)
- OXFAM, Human Rights watch, …
Individual
State is only actor that has full international personality
Expansion of areas of regulation
Creation of institutional methods of enforcement
§3: The structures of international law
A society of sovereign nation states
- Used to have only 1 actor: the State
- Lacked a central government
- International law reflects the structure of the international law system:
IL used to govern the relations between States
The international law of coexistence (‘general international law’)
- Nation state = most important legal actor
- Contains the legal answers to questions that are of interest to more that
1 State
- Requires to separate the powers of the sovereign states and thereby
uphold peaceful coexistence
- Merely seeks to ensure that states can pursue their different and
separate interests in a way that respects the sovereignty and rights of
other states
- More stable structure
The international law of cooperation
- Contains the legal answers to issues not of interest to 2 or more states
but which have been made international through the adoption of a treaty
- Much younger than the international law of coexistence
, Chapter 2: The sources of international law (art 38 Statute ICJ)
Legal sources may derive from more than 1 source, since international law is a
decentralized legal system. All international legal obligations derive from state consent
1. Article 38 Statute ICJ
- Considered of general relevance, although the article is purely directed to
the Court
2. International Conventions (treaties)
- Most direct way states create rights and obligations
- State consent is basis of IL
- Treaty only creates legal obligations for the consenting states
- Pacta sunt servanda: states must honour their treaty-based obligations
- Recognized by the contesting states
3. International custom (ILC Drak conclusions customary IL)
- Way things always have been done becomes the way that things must be done
- Practice accepted as law
- Arises when a particular way of behaving is:
a) Objective element = state practice
⇒ Followed as a general practice among states
⇒ States have acted in a certain (identical) manner when
confronted with the same facts
i. Consistency
● =practice is reasonably uniform
● Nicaragua: not to be expected that states
have acted ‘with complete consistency’
● Minor departures from a collective
uniformity may be acceptable
ii. Duration
● In situations of rapid change, state practice
may be formed in a very short time = ’instant
custom’
iii. Generality
● The majority of states
● North Sea Continental Shelf Cases: practice by
states ‘whose interests are specially affected’
is particularly relevant
b) Subjective element = opinio juris
⇒ Accepted by those states as legally binding
- Binds all states, including a state that has not taken part in the formation
of the practice, such as a newly emerged state
o Exception: when a state persistently objects
⇒ This is how a state avoids to be bound by an emerging
customary rule
Chapter 1: Foundations and structure of international law
Public international law= legal system that deals with issues of concern to more than 1 state
§1: A brief history of international law
The 1648 Peace of Westphalia:
- A crucial turning point in the history and development of international law
- The idea was to reduce the powers of transnational forces, like empire
and religion, and instead compartmentalize territory and individuals into
sovereign states
- To conclude a 30-year war that had destroyed continental Europe
- Created a decentralized system of sovereign States
- Main features of this international system:
o Legal equality of States
o Territorial sovereignty
o Non-intervention
o State consent as the basis of legal
obligation The 19th century and the era of positivism:
- Natural law= law that derives from the nature/ God
- Legal positivism= law whereby the state consent is the only true source of law
- Consensual theory= unless a state has consented to be bound by a rule, no
international legal obligation exists and the state remains entitled to act as it
pleases
The interwar period:
- 1919: creation of League of Nations
o = an organization tasked with maintaining world peace
- PCIJ was established in the
Hague Period after the 2nd WW
- League of Nations was replaced by UN, which was entrusted with the
maintenance of international peace and security
- UN is based on ‘Westphalian principles’:
o Equal rights
o Self-determination
o Sovereign equality
- Founding treaty of the UN introduced a ban on the use of force and gave a
collective organ (the SC) the competence to maintain international peace
and security and, if necessary, to authorize forceful measures
- In the General Assembly all MS are represented
- The PCIJ was replaced by the current ICJ
§2: The modern international law system
More actors came into the system
State remains the central actor, but new actors have emerged and revolve around it,
, since approximately the end of WW I
More states
TC (transnational cooperations)
NGO’s (non-governmental organizations)
- OXFAM, Human Rights watch, …
Individual
State is only actor that has full international personality
Expansion of areas of regulation
Creation of institutional methods of enforcement
§3: The structures of international law
A society of sovereign nation states
- Used to have only 1 actor: the State
- Lacked a central government
- International law reflects the structure of the international law system:
IL used to govern the relations between States
The international law of coexistence (‘general international law’)
- Nation state = most important legal actor
- Contains the legal answers to questions that are of interest to more that
1 State
- Requires to separate the powers of the sovereign states and thereby
uphold peaceful coexistence
- Merely seeks to ensure that states can pursue their different and
separate interests in a way that respects the sovereignty and rights of
other states
- More stable structure
The international law of cooperation
- Contains the legal answers to issues not of interest to 2 or more states
but which have been made international through the adoption of a treaty
- Much younger than the international law of coexistence
, Chapter 2: The sources of international law (art 38 Statute ICJ)
Legal sources may derive from more than 1 source, since international law is a
decentralized legal system. All international legal obligations derive from state consent
1. Article 38 Statute ICJ
- Considered of general relevance, although the article is purely directed to
the Court
2. International Conventions (treaties)
- Most direct way states create rights and obligations
- State consent is basis of IL
- Treaty only creates legal obligations for the consenting states
- Pacta sunt servanda: states must honour their treaty-based obligations
- Recognized by the contesting states
3. International custom (ILC Drak conclusions customary IL)
- Way things always have been done becomes the way that things must be done
- Practice accepted as law
- Arises when a particular way of behaving is:
a) Objective element = state practice
⇒ Followed as a general practice among states
⇒ States have acted in a certain (identical) manner when
confronted with the same facts
i. Consistency
● =practice is reasonably uniform
● Nicaragua: not to be expected that states
have acted ‘with complete consistency’
● Minor departures from a collective
uniformity may be acceptable
ii. Duration
● In situations of rapid change, state practice
may be formed in a very short time = ’instant
custom’
iii. Generality
● The majority of states
● North Sea Continental Shelf Cases: practice by
states ‘whose interests are specially affected’
is particularly relevant
b) Subjective element = opinio juris
⇒ Accepted by those states as legally binding
- Binds all states, including a state that has not taken part in the formation
of the practice, such as a newly emerged state
o Exception: when a state persistently objects
⇒ This is how a state avoids to be bound by an emerging
customary rule
