Public international law samenvatting
Week 1
Executive power – uitvoerende macht: the states
judicial power – rechterlijke macht: the judge
legislature – wetgevende macht: government and parlement
public international law: rules which govern the relations between sovereign states (inter-state
relationships)
private international law: governs the relations between persons of different nationalities (trans-
national private relationships)
differences between international law and national law:
- separation of powers
- horizontal vs vertical relationship between actors
- enforcement mechanism
- no overarching authority
- international law is decentralized and fragmented
National law deals with the relationship between citizens or citizens and government
International law deals with the relationship between states
Differences between monist and dualist approaches
Incorporation of international law into domestic law:
Monist state: international law directly applies in national legal order
Dualist state: international law needs to be transposed into national law before it can be applied
domestically
Hierarchy between domestic law and international law:
Monist state: if there is conflict, international law prevails (goes above national law)
Dualist state: if there is conflict, international law may be set aside
Who decides whether a state is monist or dualist
- the state decides for itself based on its secondary norms, usually the constitution (grondwet)
- most systems are a combination between monism and dualism
problems of each approach
monism: ‘direct effect’ does not determine formal rank of international law in domestic system, state
still needs to decide on its own
dualism: steps to transform international law into domestic law needed = difficult and slow process.
No need to be transposed to national law
Direct effect in article 91 binding on all person
, The Netherlands is a moderate monist state. It’s not fully monist, not all international treaties are prior
to national law, like in a monist state. Only provisions that are sufficiently clear have direct effect
(binding on all persons). According to our constitution not all provisions are directly applicable.
Week 2
Art. 38 ICJ statute (page 35)
Primary sources
- conventions/ treaties
- customary law
- general principles
subsidiary sources
- works of highly qualified academics
- judicial decisions
The United Nations
International organization created by States, and composed of States (193 states)
UN was established in 1945
It was established to prevent wars and maintain peace
UN was exercising and enjoying functions and rights
UN Members entrust functions and duties, give competence to UN
UN has international legal personality
However, the ICJ did not equate the UN to States
Organs of the UN (article 7 charter of the united nations 1945):
- international court of justice
primary sources (article 38 statute of the international court of justice):
1) international conventions
2) customary law
3) general principles
subsidiary sources
1) works of highly qualified academics
2) judicial decisions
- general assembly
- security council
the formation of a treaty
states negotiate the text >
states adopt the test >
states express consent to be bound (signing, ratification/acceptance/approval, accession) >
Week 1
Executive power – uitvoerende macht: the states
judicial power – rechterlijke macht: the judge
legislature – wetgevende macht: government and parlement
public international law: rules which govern the relations between sovereign states (inter-state
relationships)
private international law: governs the relations between persons of different nationalities (trans-
national private relationships)
differences between international law and national law:
- separation of powers
- horizontal vs vertical relationship between actors
- enforcement mechanism
- no overarching authority
- international law is decentralized and fragmented
National law deals with the relationship between citizens or citizens and government
International law deals with the relationship between states
Differences between monist and dualist approaches
Incorporation of international law into domestic law:
Monist state: international law directly applies in national legal order
Dualist state: international law needs to be transposed into national law before it can be applied
domestically
Hierarchy between domestic law and international law:
Monist state: if there is conflict, international law prevails (goes above national law)
Dualist state: if there is conflict, international law may be set aside
Who decides whether a state is monist or dualist
- the state decides for itself based on its secondary norms, usually the constitution (grondwet)
- most systems are a combination between monism and dualism
problems of each approach
monism: ‘direct effect’ does not determine formal rank of international law in domestic system, state
still needs to decide on its own
dualism: steps to transform international law into domestic law needed = difficult and slow process.
No need to be transposed to national law
Direct effect in article 91 binding on all person
, The Netherlands is a moderate monist state. It’s not fully monist, not all international treaties are prior
to national law, like in a monist state. Only provisions that are sufficiently clear have direct effect
(binding on all persons). According to our constitution not all provisions are directly applicable.
Week 2
Art. 38 ICJ statute (page 35)
Primary sources
- conventions/ treaties
- customary law
- general principles
subsidiary sources
- works of highly qualified academics
- judicial decisions
The United Nations
International organization created by States, and composed of States (193 states)
UN was established in 1945
It was established to prevent wars and maintain peace
UN was exercising and enjoying functions and rights
UN Members entrust functions and duties, give competence to UN
UN has international legal personality
However, the ICJ did not equate the UN to States
Organs of the UN (article 7 charter of the united nations 1945):
- international court of justice
primary sources (article 38 statute of the international court of justice):
1) international conventions
2) customary law
3) general principles
subsidiary sources
1) works of highly qualified academics
2) judicial decisions
- general assembly
- security council
the formation of a treaty
states negotiate the text >
states adopt the test >
states express consent to be bound (signing, ratification/acceptance/approval, accession) >
