Theorie Internationaal Recht
Full international legal personality – States
Partial legal personality – international organizations,
individuals, multi-national corporations, insurgents etc.
States: Montevideo Convention (1933), article 1:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other state
Statute of the International Court of Justice
(1945), article 38(1):
‘1. The Court...shall apply:
a. international conventions...
b. international custom...
c. the general principles of law...
d. ...judicial decisions and the teachings of the most
highly qualified publicists...as subsidiary means
for the determination of rules of law.’
Customary law
1. Opinio juris (State acts performed with belief of States
that it is a legal obligation)
2. State Practice
widespread and virtually uniform
time: may be for a longer period but also instant custom
particularly specially affected States
Consequence? Binding upon all States
Unless: persistent objector
Exception: jus cogens/peremptory norm (e.g. slavery)
States have the most far-reaching set of rights & obligations under
international law, e.g.:
o The right to sovereign equality
o The right to exercise exclusive jurisdiction over territory (week 3)
o The obligation not to intervene in the affairs of any other state (week 4)
o The obligation to refrain from the threat or use of force (week 4)
o The right to self-defense against an armed attack by another state (week 4
Huiswerk les 1:
H1: 1.1 & 1.2
H2: Helemaal
H4: Helemaal
,Hoofdstuk 1: Foundations and structure of international law
1.1 Introduction
International Law – legal issues of concern to more than one state. A system of law that
regulates the interrelationship of sovereign states and their rights and duties to one another,
but to that must be added a host of other actors, most notably international organizations and
individuals who also possess rights and/or obligations under international law.
At present, international law reflects that the world had entered a period of increasing
interstate rivalry witch less appetite for ambitious and broad international agreements on the
most pressing issues of our time.
One reason is that in American the president Trump introduced: ‘America First’.
One other reason is China, where the covid-19 pandemic started.
International law regulates an enormous amount of activities:
- International law of sea
- International human rights
- International environment law
- International economic law
- Laws of armed conflict.
Although a number of international courts have been created over the years, there is no
mandatory and well-established procedure for the settlement of legal disputes.
1.2 A Brief history of international Law
Europa in the late Middle ages (15th and 16th centuries) was characterized by both multiple
levels of different allegiances and rights and obligations as well as the universal political and
religious forces of, respectively, the Holy Roman Empire and the Catholic Church. But the
network of knights and merchants were transnational and the populations at the time often
felt a closer sense of allegiance to such communities that to their fellow nationals. It was also
a time that the idea of natural law was developed.
Natural law: contained an all embracing set of ideas about natural and social life in the
universe and, though primarily focused on the individual and his or her relations to the world,
it also applied to states by virtue of the fact that rules were also individuals and therefore
subject to it.
The period was also the dawn of colonialism, and the early confrontations between Spanish
explores and native Indian populations and kingdoms in the New World posed a particular
challenge to the philosophers and legal scholars of the time.
It is however, not until the 17th and 18th centuries, that we begin to see the contours of a
modern international legal system.
The birth of the international state system is usually traced to the 1648 Peace of Westphalia
that brought an end to the Thirty years war that had ravaged continental Europe. In the
peace treaties the major European powers sought to establish a semblance of order and
structure in an otherwise anarchical and disorderly European world. The idea was to reduce
to powers of transnational forces, like empire and religion, and instead compartmentalize
territory and individuals into sovereign states.
Primary source of authority, paving the wat for an increasing sense of allegiance
among citizens to their respective states of nationality.
, The 19th century was dominated by a full-on assault on the idea that acts of states could be
judged according to transcendent ideals of fairness of divine will. This was the era of
positivism. According to the 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. Unlike natural law, positive law does not envisage a universal legal system, but
rather one that is fragmented and in which states are bound by different legal obligations.
The destruction and carnage of the First World War dominated events in the interwar period
– the primary development was the creation in 1919 of the League of Nations – an
organization tasked with maintaining world peace.
After the Second World War the League of Nations was replaced by the United Nations –
which was entrusted with the maintenance of international peace and security. From then on
the maintenance of peace and the conduct of war were to be a collective effort.
In 1960 The assembly – a Un charter – adopted a landmark declaration on the granting of
independence to colonies that affirmed the rights of all people to self-determination and
proclaimed that colonialism should be brought to a speedy and unconditional end. And
created the International Law commission – whose primary purpose is to promote the
progressive development of international law and its codification.
The Un also did created a fey important organizations for the trade and monetary policy:
- The international Monetary Fund – ensure exchange stability and to make resources
available to states with balance of payments difficulties. Provides loans to developing
countries.
- The international bank for reconstruction and development
- General Agreement on Tariffs and Trade – liberalize world trade by reducing tariffs
and other barriers to trade
Another important post-war UN-agency is the World Health Organization (WHO) – inter alia
monitor public health risks and coordinate responses to health emergencies.
Today as it stands at 28 states, the EU consists of a number of important institutions,
including the
- European Council
- Council of the European Union – created to strengthen intergovernmental and inter-
parliamentary cooperation.
- The European Parliament
- The European Commission
- Court of Justice
In America we have a organization called the Organization of American States.
- Gereral Assembly
- Inter-American Court of Human Rights.
Most of the international institutions we know today were set up to create a world order
based on the Western values, most notably open and free economic markets, increasing
respect for individual rights and institutional cooperation. But this is now under stress,
because of the assertive non- Western powers, such as China. Furthermore for the last five
to ten years, as both Brexit and the Trump Presidency illustrate, major Western states have
experienced somewhat of a revival of nationalism and a popular backlash against some of
the values and institutions that underpin the post-Second World War Liberal international
legal order.
Full international legal personality – States
Partial legal personality – international organizations,
individuals, multi-national corporations, insurgents etc.
States: Montevideo Convention (1933), article 1:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other state
Statute of the International Court of Justice
(1945), article 38(1):
‘1. The Court...shall apply:
a. international conventions...
b. international custom...
c. the general principles of law...
d. ...judicial decisions and the teachings of the most
highly qualified publicists...as subsidiary means
for the determination of rules of law.’
Customary law
1. Opinio juris (State acts performed with belief of States
that it is a legal obligation)
2. State Practice
widespread and virtually uniform
time: may be for a longer period but also instant custom
particularly specially affected States
Consequence? Binding upon all States
Unless: persistent objector
Exception: jus cogens/peremptory norm (e.g. slavery)
States have the most far-reaching set of rights & obligations under
international law, e.g.:
o The right to sovereign equality
o The right to exercise exclusive jurisdiction over territory (week 3)
o The obligation not to intervene in the affairs of any other state (week 4)
o The obligation to refrain from the threat or use of force (week 4)
o The right to self-defense against an armed attack by another state (week 4
Huiswerk les 1:
H1: 1.1 & 1.2
H2: Helemaal
H4: Helemaal
,Hoofdstuk 1: Foundations and structure of international law
1.1 Introduction
International Law – legal issues of concern to more than one state. A system of law that
regulates the interrelationship of sovereign states and their rights and duties to one another,
but to that must be added a host of other actors, most notably international organizations and
individuals who also possess rights and/or obligations under international law.
At present, international law reflects that the world had entered a period of increasing
interstate rivalry witch less appetite for ambitious and broad international agreements on the
most pressing issues of our time.
One reason is that in American the president Trump introduced: ‘America First’.
One other reason is China, where the covid-19 pandemic started.
International law regulates an enormous amount of activities:
- International law of sea
- International human rights
- International environment law
- International economic law
- Laws of armed conflict.
Although a number of international courts have been created over the years, there is no
mandatory and well-established procedure for the settlement of legal disputes.
1.2 A Brief history of international Law
Europa in the late Middle ages (15th and 16th centuries) was characterized by both multiple
levels of different allegiances and rights and obligations as well as the universal political and
religious forces of, respectively, the Holy Roman Empire and the Catholic Church. But the
network of knights and merchants were transnational and the populations at the time often
felt a closer sense of allegiance to such communities that to their fellow nationals. It was also
a time that the idea of natural law was developed.
Natural law: contained an all embracing set of ideas about natural and social life in the
universe and, though primarily focused on the individual and his or her relations to the world,
it also applied to states by virtue of the fact that rules were also individuals and therefore
subject to it.
The period was also the dawn of colonialism, and the early confrontations between Spanish
explores and native Indian populations and kingdoms in the New World posed a particular
challenge to the philosophers and legal scholars of the time.
It is however, not until the 17th and 18th centuries, that we begin to see the contours of a
modern international legal system.
The birth of the international state system is usually traced to the 1648 Peace of Westphalia
that brought an end to the Thirty years war that had ravaged continental Europe. In the
peace treaties the major European powers sought to establish a semblance of order and
structure in an otherwise anarchical and disorderly European world. The idea was to reduce
to powers of transnational forces, like empire and religion, and instead compartmentalize
territory and individuals into sovereign states.
Primary source of authority, paving the wat for an increasing sense of allegiance
among citizens to their respective states of nationality.
, The 19th century was dominated by a full-on assault on the idea that acts of states could be
judged according to transcendent ideals of fairness of divine will. This was the era of
positivism. According to the 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. Unlike natural law, positive law does not envisage a universal legal system, but
rather one that is fragmented and in which states are bound by different legal obligations.
The destruction and carnage of the First World War dominated events in the interwar period
– the primary development was the creation in 1919 of the League of Nations – an
organization tasked with maintaining world peace.
After the Second World War the League of Nations was replaced by the United Nations –
which was entrusted with the maintenance of international peace and security. From then on
the maintenance of peace and the conduct of war were to be a collective effort.
In 1960 The assembly – a Un charter – adopted a landmark declaration on the granting of
independence to colonies that affirmed the rights of all people to self-determination and
proclaimed that colonialism should be brought to a speedy and unconditional end. And
created the International Law commission – whose primary purpose is to promote the
progressive development of international law and its codification.
The Un also did created a fey important organizations for the trade and monetary policy:
- The international Monetary Fund – ensure exchange stability and to make resources
available to states with balance of payments difficulties. Provides loans to developing
countries.
- The international bank for reconstruction and development
- General Agreement on Tariffs and Trade – liberalize world trade by reducing tariffs
and other barriers to trade
Another important post-war UN-agency is the World Health Organization (WHO) – inter alia
monitor public health risks and coordinate responses to health emergencies.
Today as it stands at 28 states, the EU consists of a number of important institutions,
including the
- European Council
- Council of the European Union – created to strengthen intergovernmental and inter-
parliamentary cooperation.
- The European Parliament
- The European Commission
- Court of Justice
In America we have a organization called the Organization of American States.
- Gereral Assembly
- Inter-American Court of Human Rights.
Most of the international institutions we know today were set up to create a world order
based on the Western values, most notably open and free economic markets, increasing
respect for individual rights and institutional cooperation. But this is now under stress,
because of the assertive non- Western powers, such as China. Furthermore for the last five
to ten years, as both Brexit and the Trump Presidency illustrate, major Western states have
experienced somewhat of a revival of nationalism and a popular backlash against some of
the values and institutions that underpin the post-Second World War Liberal international
legal order.
