International law
CHAPTER I: FOUNDATIONS AND STRUCTURE OF INTERNATIONAL LAW
I.3. The structures of international law
I.3.1. Introduction – a society of sovereign nation states
The international legal system consists of different structures of rules
- National law is ill-suited to a situation of interests of more than one
sovereign state collide
- International law serves as a supplement to national law
- Only when an issue is of interest to more than one national sovereign will
international law enter the picture
The scope of international law is determined by the inadequacy of national law
- 2 structures of international law
o International law of coexistence
o International law of cooperation
I.3.2. The international law of coexistence
International law of coexistence = general international law
- Legal answers to questions of interest to more than one state
- Uphold peaceful coexistence
- Primarily horizontal
- Mainly concerned with the manner in how sovereign states interact with
each other
o Ensure that states pursue who pursue their interests respect the
sovereignty of other states
- Not concerned with binding states together in international communities
- Relatively stable, not subject to much change
- Vague, easily recognizable rules are rare
I.3.3. The international law of cooperation
International law of cooperation
- Legal answers to issues which have been made international by a treaty
o Treaties = international agreements governed by international law
- Younger than international law of coexistence
- Came immediately after the end of WOII
- Social goals
o EU law, international human rights law, international environmental
law, international economic law
- Is ‘optional’
1
,I.4. The basis of international obligation
International theory struggles to reconcile state sovereignty with international
obligation
- If a state is truly sovereign, how can it be bound by international law?
o Therefor appears either state is sovereign, or it is bound by
international law
- Not an irreconcilable tension between sovereignty and international legal
obligations
o Existence of plurality of sovereign states justifies the binding
character of international law
o If liberty for all is to be respected, it is only limited by how states
exercise sovereignty to ensure respect for sovereignty of all states
- Peaceful coexistence requires basic rules
o Even sovereign states are bound
o All states accept that they are members of a society of states
o States never question that they are bound by national law
Justification of a breach reaffirms the existence of
international law
I.5. The relationship between international law and national law
International law asserts its own supremacy over national law
- States cannot justify a breach of international law by arguing in
compliance with national law
- Each state determines how it implements international law
International law is applied in the national legal systems by the legislature and
national courts
- Varies from state to state
- Monism
o International law and national law form a single legal order
o International law can be applied directly in the national legal system
o International norm prevails in case of conflict
- Dualism
o International law and national law are 2 separate legal systems that
operate independently
o International law regulates relationships between states
o National law regulates relationships between citizens or citizens and
the state
o International law is ‘translated’ into the national legal system
Customary international law
- Answers to separate the powers of sovereign states
- National courts are more willing to apply those norms than norms derived
from treaties
- Both civil law and common law apply customary international law directly
in their legal systems
2
,All national courts try to avoid a breach of international obligation by interpreting
national law in accordance with international obligation
3
, I.6. The issue of enforcement of international law
Lack of a police force and a mandatory judicial system
- Significant progress made
o Number of courts and tribunals with competence to handle
complaints about breaches
o UN: bodies and committees with varying mandates for complaints
about human rights
o Europe: ECJ & ECtHR binding decisions
Policing and actual enforcement of breaches of international law
- States may try to seek redress before UN Security Council
o Enforcement is rare
o Role is to uphold international peace and security
o More influenced by political and strategic considerations than law
o If It does take action
Wide range of options
Imposing a variety of forms of sanctions
Deployment of UN personnel to area of dispute
o May establish criminal tribunals
Prosecuting serious international crimes
o May take place outside UN in regional organizations
EU can sanction own members (art 7 TEU)
Most cases state is left with no choice but to adopt its own measures in response
to another state’s violation
- International law is a system of self help
- Violation relates to a breach of treaty obligation
o Aggrieved state allowed to respond by suspending own
performance of treaty
- Principles of State Responsibility
o Allow a state to respond to another state’s breach
o By employing countermeasures
o Breaching international law towards delinquent state
Ex. Halting foreign aid, suspending trade, …
States generally honor their legal obligations
- Strong element of reciprocity
- Long-term benefits to well-functioning international legal system
- Most states care about their reputation
I.7. The critique of contemporary international law
Third World approaches to international law (TWAIL) school
- Dominating north (west)
- One form of colonization replaced with another
4
CHAPTER I: FOUNDATIONS AND STRUCTURE OF INTERNATIONAL LAW
I.3. The structures of international law
I.3.1. Introduction – a society of sovereign nation states
The international legal system consists of different structures of rules
- National law is ill-suited to a situation of interests of more than one
sovereign state collide
- International law serves as a supplement to national law
- Only when an issue is of interest to more than one national sovereign will
international law enter the picture
The scope of international law is determined by the inadequacy of national law
- 2 structures of international law
o International law of coexistence
o International law of cooperation
I.3.2. The international law of coexistence
International law of coexistence = general international law
- Legal answers to questions of interest to more than one state
- Uphold peaceful coexistence
- Primarily horizontal
- Mainly concerned with the manner in how sovereign states interact with
each other
o Ensure that states pursue who pursue their interests respect the
sovereignty of other states
- Not concerned with binding states together in international communities
- Relatively stable, not subject to much change
- Vague, easily recognizable rules are rare
I.3.3. The international law of cooperation
International law of cooperation
- Legal answers to issues which have been made international by a treaty
o Treaties = international agreements governed by international law
- Younger than international law of coexistence
- Came immediately after the end of WOII
- Social goals
o EU law, international human rights law, international environmental
law, international economic law
- Is ‘optional’
1
,I.4. The basis of international obligation
International theory struggles to reconcile state sovereignty with international
obligation
- If a state is truly sovereign, how can it be bound by international law?
o Therefor appears either state is sovereign, or it is bound by
international law
- Not an irreconcilable tension between sovereignty and international legal
obligations
o Existence of plurality of sovereign states justifies the binding
character of international law
o If liberty for all is to be respected, it is only limited by how states
exercise sovereignty to ensure respect for sovereignty of all states
- Peaceful coexistence requires basic rules
o Even sovereign states are bound
o All states accept that they are members of a society of states
o States never question that they are bound by national law
Justification of a breach reaffirms the existence of
international law
I.5. The relationship between international law and national law
International law asserts its own supremacy over national law
- States cannot justify a breach of international law by arguing in
compliance with national law
- Each state determines how it implements international law
International law is applied in the national legal systems by the legislature and
national courts
- Varies from state to state
- Monism
o International law and national law form a single legal order
o International law can be applied directly in the national legal system
o International norm prevails in case of conflict
- Dualism
o International law and national law are 2 separate legal systems that
operate independently
o International law regulates relationships between states
o National law regulates relationships between citizens or citizens and
the state
o International law is ‘translated’ into the national legal system
Customary international law
- Answers to separate the powers of sovereign states
- National courts are more willing to apply those norms than norms derived
from treaties
- Both civil law and common law apply customary international law directly
in their legal systems
2
,All national courts try to avoid a breach of international obligation by interpreting
national law in accordance with international obligation
3
, I.6. The issue of enforcement of international law
Lack of a police force and a mandatory judicial system
- Significant progress made
o Number of courts and tribunals with competence to handle
complaints about breaches
o UN: bodies and committees with varying mandates for complaints
about human rights
o Europe: ECJ & ECtHR binding decisions
Policing and actual enforcement of breaches of international law
- States may try to seek redress before UN Security Council
o Enforcement is rare
o Role is to uphold international peace and security
o More influenced by political and strategic considerations than law
o If It does take action
Wide range of options
Imposing a variety of forms of sanctions
Deployment of UN personnel to area of dispute
o May establish criminal tribunals
Prosecuting serious international crimes
o May take place outside UN in regional organizations
EU can sanction own members (art 7 TEU)
Most cases state is left with no choice but to adopt its own measures in response
to another state’s violation
- International law is a system of self help
- Violation relates to a breach of treaty obligation
o Aggrieved state allowed to respond by suspending own
performance of treaty
- Principles of State Responsibility
o Allow a state to respond to another state’s breach
o By employing countermeasures
o Breaching international law towards delinquent state
Ex. Halting foreign aid, suspending trade, …
States generally honor their legal obligations
- Strong element of reciprocity
- Long-term benefits to well-functioning international legal system
- Most states care about their reputation
I.7. The critique of contemporary international law
Third World approaches to international law (TWAIL) school
- Dominating north (west)
- One form of colonization replaced with another
4
