Samenvatting voor tentamen Public international Law , Universiteit Utrecht

WEEK 1: THE NATURE AND STRUCTURE OF INTERNATIONAL LAW:
Birth of modern international law: 1648 Peace of Wesphalia.
Main differences between national and international law: international law is more horizontal and
national law more vertical. Also enforcement is very different.

Monism:
1. A single and coherent legal system.
2. International law applicable in national legal system.
Dualism:
1. Two separate legal systems that operate independently.
2. National legislation adopted to give effect to international law.
Pluralism:
1. Relationship between the two systems is more complex and diverse.

Monist approach: In the Monist approach international law has direct effect and does not need to be
converted into law.
Dualist approach: In the Dualist approach international law must first be converted into national law.
The Netherlands is: Moderately monist state. However, restrictions on this system can be found in
the Dutch constitution, such as articles 93 and 94. It states that public law comes into force when it is
made public and that international treaty provisions take precedence over national law, but only
those provision that are biding on everyone. It is clear from this that the Dutch legal order has only a
moderately monistic character.

Coexistence: Exist next to each other.
Cooperation: Working together.

Why do we have international law?:
1. Inadequacy of national law.
2. Dependency of international community.
3. Important is the: sovereignty and consent!

Why do states obey international law (most of the time?): almost always:
1. Desire for order and predictability over chaos.
2. Consent and obedience.
3. Legitimacy.
4. Enforcement mechanisms.

Enforcement of international law:
1. International organisations.
2. International courts and tribunals.




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, WEEK 2: SOURCES OF INTERNATIONAL LAW:
How to express consent:
There are many different ways a State can express consent to be bound (art 11-17 VCLT).
Three main ways:
1. Signature (art 12/14 VCLT).
2. Ratification (art 14/16 VCLT).
3. Accession (art 15 VCLT).

Art. 18 VCLT:
State is obliged to refrain from acts which would ‘defeat the object and purpose’ of the treaty when:
1. It has signed subject to ratification, until it has made its intentions clear not to become a party to
treaty, or:
2. Pending the treaty’s entry into force.

Application of treaties:
1. Pacta sunt servanda (art 26 VLCT).
2. Presumption of no retroactive application (art 28 VCLT).
3. Presumption that treaties are binding over entire territory (art 29 VCLT).

Treaty interpretation:
1. Textual.
2. Historical.
3. Teleological.

Customary international law:
Unwritten laws: what kind of characteristics.
1. How general?: Widespread an representative.
2. Whose practice?: Specially affected states.
3. Duration of practice?: Can be short.
4. Nature of practice?: Extensive and virtually uniform.

Opinio Juris:
1. Be carried out in a way as to evidence belief that practice is required by law, as opposed to mere
tradition of courtesy.
2. Must feel that they are conforming to a legal obligation.
3. Frequency of practice is not sufficient on its own.

Relationship between treaties & custom: There is no hierarchy.

What if a state disagrees with vast majority of states about the formation of custom?:
Persistent objector.
1. Clear, sustained, and from the beginning.
2. So you cannot just object once, you must be persistent.
3. Not very common in practice.

General principles as sources of international law: article 38 C ICJ:
They fill gaps, good faith, equity, nullem crimen sine lege.

Other sources: Unilateral declarations, biding decisions of the Security Council, Scholarship, Soft law.




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