Introduction to international and European law
Contents
Introduction to international and European law...............................................1
0. The IRAC-method...................................................................................2
International law, Anders Henriksen.............................................................3
1. Foundations and structure of international law.....................................3
2. Sources on international law.................................................................6
3. The law of treaties...............................................................................10
4. The actors in the international legal system.......................................13
5. Jurisdiction...........................................................................................18
7. State responsibility..............................................................................20
12. The peaceful settlement of disputes.................................................26
13. The international regulation of the use of force................................30
Materials International law......................................................................36
Cases International law...........................................................................37
European Union Law...................................................................................45
1. Introduction and guide to the law of the European Union and its study
................................................................................................................45
2. The nature of the European legal order and its relationship with the
legal orders of the member states..........................................................46
3. The institutional framework of the European Union............................63
4. Decision-making procedures in the European Union...........................81
5. Legal protection in the European Union..............................................92
10. The external policy of the European Union......................................106
11. The development of European integration in context.....................106
Artikelen................................................................................................110
Simplified memo on treaty revision.......................................................111
Week 5......................................................................................................116
1
,0. The IRAC-method
In order to help you develop and practice with this skill, we advise you to
follow an often-used method in order to structure your answer: the IRAC-
method. ‘IRAC’ is an abbreviation for the following elements:
1) Issue
The first step is to identify the issue at hand; what is the problem? Or, what
question is the
question asked? Reformulating the question may help you to understand
exactly what the legal situation in the question is, and thus what is expected
of you.
2) Rule
Once you have defined the problem of the case/question, you can identify
the rules that might be applicable to solve this identified issue. Before
describing the specific rules, it is useful to clarify for yourself which field of
law might be relevant for the issue you identified. An example of a field of
law is the laws on state responsibility or the use of force. The rule may
consist of various elements, which you can differentiate based on the
sources of international and European Union law. Roughly, two categories
can be distinguished in which each source can be reflected:
a) Treaties: Firstly, rules may arise out of treaties, especially if states (or
other subjects) are party to it.
b) Case Law: Case law of international and European judicial bodies may
contain rules of public international law and European Union law that are not
necessarily codified in treaties.
Be reminded that in this step, you explain case law which has already been
judged upon
by an international court, tribunal or European CJ. You do not yet apply
this case law to your own case at hand.
3) Application
In the two steps prior, you identified the relevant facts of the case, and the
relevant law(s) for the case at hand. Now you bring both together, and based
on both, come with a legal solution to the case at hand. Remember to argue
the law to your case (do not argue the facts).
4) Conclusion
Ensure to end your analysis with a concluding phrase, in which you provide
an answer to the issue you have identified in the first step and to the
question being asked.
2
,International law, Anders Henriksen
1. Foundations and structure of international law
1.1 Introduction
International law deals with legal issues of concern to more than one state,
but it also concerns international organizations and individuals who possess
rights and/or obligations under international law. Unlike in a domestic legal
system, there is neither a legislative (wetgevende macht) nor an executive
(uitvoerende macht) branch in the international legal system. Neither is
there well-established procedure for the settlement of legal disputes.
1.2 A brief history of international law
1.2.1 Early modern international law
Europe in the late middle ages (15th and 16th centuries) was characterized by
different allegiances as well as the universal political and religious forces of
the Holy Roman Empire and the Catholic Church. The Pope was in particular
able to exert considerable influence over a lot of territories. It was also a
time when ideas about the normative structure of the world were dominated
by theories of natural law. Natural law contained ideas about natural and
social life in the universe. States, by virtue of the fact that rulers were also
individuals were therefore subject to it. Next to natural law (jus naturale)
was jus gentium, a law of people/nations and hence inferior to natural law,
being derived from the latter.
Not until the 17th and 18th centuries we begin to see the contours of a
modern international legal system where from the jus gentium international
law as we know it today develops. One of the famous key-players in the
development of international law is the international lawyer Hugo Grotius
(1583-1645).
1.2.2 Peace of Westphalia
The ‘birth’ of the international state system is usually traced to the 1648
Peace of Westphalia. Here the major European powers sought to establish
a semblance (schijn) of order and structure in the disorderly European world
with two treaties, the treaty of Munster and the treaty of Osnabruck.
1.2.3 The 19th century and the era of positivism’
The 19th century was dominated by the idea of ‘positivism’. 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. It was during this period that the fist multilateral treaties were
concluded.
1.2.4 The interwar period
3
, A major achievement in the period between the first and second world war
was the establishment of the Permanent Court of International Justice (PCIJ)
(later the International CJ, ICJ) in The Hague.
1.2.5 The period after the second world war
The period after WO2 was a time of major achievements in international law.
The UN (United Nations), built on ‘Westphalian’ principles was instated and
entrusted with the maintenance of international peace and security. The UN-
assembly has also helped with the decolonization process. The UN serves as
an umbrella structure for a number of important international organizations
like the IMF (international monetary fund), the World Bank, the WTO (World
Trade Organization) and the WHO (World Health Organization).
Important ‘regional ‘organizations like the NATO (North Atlantic Treaty
Organization) were created to counter the threat from the Soviet Union. The
EU began as an open market for the trade of coal and steel. Nowadays, non-
Western organizations begin to play a bigger role in international affairs.
1.3 The structures of international law
1.3.1 Introduction – a society of sovereign nation states
Since the 1648 Peace of Westphalia, the center of the international system
has been the sovereign state and international society is first and foremost a
society of individual national states. International law serves as a
supplement to a states’ national law. The scope of international law is
determined by the inadequacy of national law. The two ways in which an
issue becomes of interest to more than one state are:
1) When two or more states have colliding interest in de substance of an
issue.
2) When two or more states agree in a treaty to turn an issue into one of
an international character.
Thus, a matter may become an issue for international law either due to its
content (the international law of coexistence) or due to its form (the
international law of cooperation).
1.3.2 The international law of coexistence
The international law of coexistence (at times referred to as ‘general
international law’) contains the legal answers to questions that are inherently
of interest to more than one state and required to separate the powers of the
sovereign states and thereby uphold peaceful coexistence. As a legal
structure, the international law of coexistence is primarily horizontal in the
sense that it is mainly concerned with the manner in which sovereign states
interact with and between each other. As a fundamental structure of
international law it is relatively stable and not subject to much change, but is
does have an inherent vagueness.
1.3.3 The international law of cooperation
4
Contents
Introduction to international and European law...............................................1
0. The IRAC-method...................................................................................2
International law, Anders Henriksen.............................................................3
1. Foundations and structure of international law.....................................3
2. Sources on international law.................................................................6
3. The law of treaties...............................................................................10
4. The actors in the international legal system.......................................13
5. Jurisdiction...........................................................................................18
7. State responsibility..............................................................................20
12. The peaceful settlement of disputes.................................................26
13. The international regulation of the use of force................................30
Materials International law......................................................................36
Cases International law...........................................................................37
European Union Law...................................................................................45
1. Introduction and guide to the law of the European Union and its study
................................................................................................................45
2. The nature of the European legal order and its relationship with the
legal orders of the member states..........................................................46
3. The institutional framework of the European Union............................63
4. Decision-making procedures in the European Union...........................81
5. Legal protection in the European Union..............................................92
10. The external policy of the European Union......................................106
11. The development of European integration in context.....................106
Artikelen................................................................................................110
Simplified memo on treaty revision.......................................................111
Week 5......................................................................................................116
1
,0. The IRAC-method
In order to help you develop and practice with this skill, we advise you to
follow an often-used method in order to structure your answer: the IRAC-
method. ‘IRAC’ is an abbreviation for the following elements:
1) Issue
The first step is to identify the issue at hand; what is the problem? Or, what
question is the
question asked? Reformulating the question may help you to understand
exactly what the legal situation in the question is, and thus what is expected
of you.
2) Rule
Once you have defined the problem of the case/question, you can identify
the rules that might be applicable to solve this identified issue. Before
describing the specific rules, it is useful to clarify for yourself which field of
law might be relevant for the issue you identified. An example of a field of
law is the laws on state responsibility or the use of force. The rule may
consist of various elements, which you can differentiate based on the
sources of international and European Union law. Roughly, two categories
can be distinguished in which each source can be reflected:
a) Treaties: Firstly, rules may arise out of treaties, especially if states (or
other subjects) are party to it.
b) Case Law: Case law of international and European judicial bodies may
contain rules of public international law and European Union law that are not
necessarily codified in treaties.
Be reminded that in this step, you explain case law which has already been
judged upon
by an international court, tribunal or European CJ. You do not yet apply
this case law to your own case at hand.
3) Application
In the two steps prior, you identified the relevant facts of the case, and the
relevant law(s) for the case at hand. Now you bring both together, and based
on both, come with a legal solution to the case at hand. Remember to argue
the law to your case (do not argue the facts).
4) Conclusion
Ensure to end your analysis with a concluding phrase, in which you provide
an answer to the issue you have identified in the first step and to the
question being asked.
2
,International law, Anders Henriksen
1. Foundations and structure of international law
1.1 Introduction
International law deals with legal issues of concern to more than one state,
but it also concerns international organizations and individuals who possess
rights and/or obligations under international law. Unlike in a domestic legal
system, there is neither a legislative (wetgevende macht) nor an executive
(uitvoerende macht) branch in the international legal system. Neither is
there well-established procedure for the settlement of legal disputes.
1.2 A brief history of international law
1.2.1 Early modern international law
Europe in the late middle ages (15th and 16th centuries) was characterized by
different allegiances as well as the universal political and religious forces of
the Holy Roman Empire and the Catholic Church. The Pope was in particular
able to exert considerable influence over a lot of territories. It was also a
time when ideas about the normative structure of the world were dominated
by theories of natural law. Natural law contained ideas about natural and
social life in the universe. States, by virtue of the fact that rulers were also
individuals were therefore subject to it. Next to natural law (jus naturale)
was jus gentium, a law of people/nations and hence inferior to natural law,
being derived from the latter.
Not until the 17th and 18th centuries we begin to see the contours of a
modern international legal system where from the jus gentium international
law as we know it today develops. One of the famous key-players in the
development of international law is the international lawyer Hugo Grotius
(1583-1645).
1.2.2 Peace of Westphalia
The ‘birth’ of the international state system is usually traced to the 1648
Peace of Westphalia. Here the major European powers sought to establish
a semblance (schijn) of order and structure in the disorderly European world
with two treaties, the treaty of Munster and the treaty of Osnabruck.
1.2.3 The 19th century and the era of positivism’
The 19th century was dominated by the idea of ‘positivism’. 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. It was during this period that the fist multilateral treaties were
concluded.
1.2.4 The interwar period
3
, A major achievement in the period between the first and second world war
was the establishment of the Permanent Court of International Justice (PCIJ)
(later the International CJ, ICJ) in The Hague.
1.2.5 The period after the second world war
The period after WO2 was a time of major achievements in international law.
The UN (United Nations), built on ‘Westphalian’ principles was instated and
entrusted with the maintenance of international peace and security. The UN-
assembly has also helped with the decolonization process. The UN serves as
an umbrella structure for a number of important international organizations
like the IMF (international monetary fund), the World Bank, the WTO (World
Trade Organization) and the WHO (World Health Organization).
Important ‘regional ‘organizations like the NATO (North Atlantic Treaty
Organization) were created to counter the threat from the Soviet Union. The
EU began as an open market for the trade of coal and steel. Nowadays, non-
Western organizations begin to play a bigger role in international affairs.
1.3 The structures of international law
1.3.1 Introduction – a society of sovereign nation states
Since the 1648 Peace of Westphalia, the center of the international system
has been the sovereign state and international society is first and foremost a
society of individual national states. International law serves as a
supplement to a states’ national law. The scope of international law is
determined by the inadequacy of national law. The two ways in which an
issue becomes of interest to more than one state are:
1) When two or more states have colliding interest in de substance of an
issue.
2) When two or more states agree in a treaty to turn an issue into one of
an international character.
Thus, a matter may become an issue for international law either due to its
content (the international law of coexistence) or due to its form (the
international law of cooperation).
1.3.2 The international law of coexistence
The international law of coexistence (at times referred to as ‘general
international law’) contains the legal answers to questions that are inherently
of interest to more than one state and required to separate the powers of the
sovereign states and thereby uphold peaceful coexistence. As a legal
structure, the international law of coexistence is primarily horizontal in the
sense that it is mainly concerned with the manner in which sovereign states
interact with and between each other. As a fundamental structure of
international law it is relatively stable and not subject to much change, but is
does have an inherent vagueness.
1.3.3 The international law of cooperation
4
