Lecture 1 introduction to the course and a short history of
international law
The origins of international law:
International law is mostly based on states, but there are early forms of
‘international cooperation’.
The peace of Westphalia 1648: a peace treaty between a few states in
Europe. This peace treaty did two things:
o Rejection of the power of the pope in international affairs, because
within our states we are sovereign. States have exclusive powers.
o Equal sovereignty of states: no state has more power than other
states. And no state has power over another state.
The ‘fathers’ of international law: they developed the basics of
international law.
o These man were statesman, no lawyers or such. The biggest one
was Hugo Grotius.
How did the first European treaty rules spread through the rest of the
world?
o Through colonialism the European state-based system was spread
=> states only worker together where they had to. This lead to:
The deepening of international cooperation through
international organisations, multilateral conferences and
treaties, mainly because they are seen as an international
interest.
International law in the 20th century;
World War 1 (1914 – 1918) and aftermath
o League of nations => seen as the first attempt from states to try
and have an international organisation (failed).
o Permanent Court of international Justice (PCIJ).
World War 2 (1939 – 1945) and the post-war settlement; beginning of the
decolonisation period.
o For such tragedies not to happen again the Charter of the United
Nations and the ICJ Statute were created.
o Bretton Woods settlement 1944
o Universal Declaration of Human Rights 1948 => first time states
came together to talk about human rights (not legally binding).
o Geneva Convention 1945
o The biggest wave of decolonization started. This changed the shape
and nature of international law.
Cold war period (1945 -1989)
o Deadlock of the UN
o At the same time we saw a surge in treaty-making, especially in
human rights and environmental protection.
1990s/early 2000s
o A lot of movement within international law
o Increased role of the ICJ and UN institutions
o Rebirth of international criminal law.
,Natural law (jus naturale) versus positivism (jus gentium) in international law:
Natural law = law that is based on an underlying idea, like religion, reason
or logic.
o Natural rights = there are certain basic human rights that are so
important/essential for human dignity that they must be a rule.
o Natural law and morality = natural law is nothing without a certain
morality.
Positivism = law that is made by people, everything that goes through a
law-making process is law.
o Law does not just exist without people (states), law is made by
states (through state consent).
State sovereignty and its consequences:
All states are sovereign and equal. No state has a legal right to intervene in
another states internal affairs.
States all have the same legal power (sovereign equality), but not always
the same actual equality (for example, the not every state has the same
political power).
Horizontal legal order: every state has the same legal rights.
Everything is decentralized, because of the sovereignty of states and the
horizontal legal order.
State consent:
o No states can impose a legal obligation on to another state.
o National courts can only apply their jurisdiction if the state has
consented.
Law between states:
International law was/is seen as law between states. Nowadays, international law
is not only law between states, there are also a lot of other factors, like:
International organisations
Multinational corporations => not a subject of international law, but they
can have equal economic power as small countries.
NGOs
‘quasi’/unrecognised’ states
Individuals => international law also engages with individuals.
Some question that put international law in perspective:
1. Is international law a legal system? Does it have a constitution?
2. Is international law universal?
a. General rules are not understood in the same way in every country.
3. Is international law fair?
a. Do general rules apply equally?
4. Can international law keep up with modern challenges?
Relationship between international law and domestic law:
Monism vs Dualism:
o Monism => there is one unified legal order. International law applies
directly in the national system. International law is immediately and
, directly applicable within the national legal order. For example, the
Netherlands.
o Dualism => international law and national law are completely
separate and distinct legal orders. International legal rules must be
incorporated (‘transformed’) into national law to have effect within
the domestic legal order (by legislation or judicial recognition). For
example, the UK.
The view from international law: article 3 ARSIWA and art. 27 VCLT.
Lecture 2 critical approaches to international law
What are critical approaches?
What is an approach = the way we look at the world, it is a perspective.
o Humans are looking at international law through a particular critical
lens.
Critical approaches are an essential part of understanding international
law. It is important to think critical.
3 different approaches that we are going to look at:
o Third world approaches on international law (TWAIL)
o Feminist approaches to international law
o Critical environmental approaches to international law
Third world approach on international law (TWAIL)
This approach originates from anti-colonialism movements. With the idea that
colonialism still has an impact on international law nowadays. Colonialism could
lead to deconstruction and reconstruction of international law. TWAIL has two
focuses: historical and modern.
Colonialism = continuing regime of ‘domination and subordination’
Historical focus:
Colonialism is seen as the ‘tainted origins’ of international law.
One of the father figures (Francesco di Victoria) of international law came
up with the idea that there are ‘civilised’ and ‘uncivilised’ worlds. And
asked the question what do we do when those two worlds meet?
International law is seen as a tool for colonialism.
Modern focus:
Representation of international law:
o Individuals => judges of the ICJ need to come from a different
background.
o Within institutions => for example the UNSC (executive organ of the
UN), has five permanent members (UK, US, China, Russia and
France). These five permanent members have a veto power.
Decolonised states are still bound by the legal order that was created by
Europe.
There are ‘developed’ and ‘developing’ states:
o This is the more modern idea of the ‘civilized and uncivilised
nations’
international law
The origins of international law:
International law is mostly based on states, but there are early forms of
‘international cooperation’.
The peace of Westphalia 1648: a peace treaty between a few states in
Europe. This peace treaty did two things:
o Rejection of the power of the pope in international affairs, because
within our states we are sovereign. States have exclusive powers.
o Equal sovereignty of states: no state has more power than other
states. And no state has power over another state.
The ‘fathers’ of international law: they developed the basics of
international law.
o These man were statesman, no lawyers or such. The biggest one
was Hugo Grotius.
How did the first European treaty rules spread through the rest of the
world?
o Through colonialism the European state-based system was spread
=> states only worker together where they had to. This lead to:
The deepening of international cooperation through
international organisations, multilateral conferences and
treaties, mainly because they are seen as an international
interest.
International law in the 20th century;
World War 1 (1914 – 1918) and aftermath
o League of nations => seen as the first attempt from states to try
and have an international organisation (failed).
o Permanent Court of international Justice (PCIJ).
World War 2 (1939 – 1945) and the post-war settlement; beginning of the
decolonisation period.
o For such tragedies not to happen again the Charter of the United
Nations and the ICJ Statute were created.
o Bretton Woods settlement 1944
o Universal Declaration of Human Rights 1948 => first time states
came together to talk about human rights (not legally binding).
o Geneva Convention 1945
o The biggest wave of decolonization started. This changed the shape
and nature of international law.
Cold war period (1945 -1989)
o Deadlock of the UN
o At the same time we saw a surge in treaty-making, especially in
human rights and environmental protection.
1990s/early 2000s
o A lot of movement within international law
o Increased role of the ICJ and UN institutions
o Rebirth of international criminal law.
,Natural law (jus naturale) versus positivism (jus gentium) in international law:
Natural law = law that is based on an underlying idea, like religion, reason
or logic.
o Natural rights = there are certain basic human rights that are so
important/essential for human dignity that they must be a rule.
o Natural law and morality = natural law is nothing without a certain
morality.
Positivism = law that is made by people, everything that goes through a
law-making process is law.
o Law does not just exist without people (states), law is made by
states (through state consent).
State sovereignty and its consequences:
All states are sovereign and equal. No state has a legal right to intervene in
another states internal affairs.
States all have the same legal power (sovereign equality), but not always
the same actual equality (for example, the not every state has the same
political power).
Horizontal legal order: every state has the same legal rights.
Everything is decentralized, because of the sovereignty of states and the
horizontal legal order.
State consent:
o No states can impose a legal obligation on to another state.
o National courts can only apply their jurisdiction if the state has
consented.
Law between states:
International law was/is seen as law between states. Nowadays, international law
is not only law between states, there are also a lot of other factors, like:
International organisations
Multinational corporations => not a subject of international law, but they
can have equal economic power as small countries.
NGOs
‘quasi’/unrecognised’ states
Individuals => international law also engages with individuals.
Some question that put international law in perspective:
1. Is international law a legal system? Does it have a constitution?
2. Is international law universal?
a. General rules are not understood in the same way in every country.
3. Is international law fair?
a. Do general rules apply equally?
4. Can international law keep up with modern challenges?
Relationship between international law and domestic law:
Monism vs Dualism:
o Monism => there is one unified legal order. International law applies
directly in the national system. International law is immediately and
, directly applicable within the national legal order. For example, the
Netherlands.
o Dualism => international law and national law are completely
separate and distinct legal orders. International legal rules must be
incorporated (‘transformed’) into national law to have effect within
the domestic legal order (by legislation or judicial recognition). For
example, the UK.
The view from international law: article 3 ARSIWA and art. 27 VCLT.
Lecture 2 critical approaches to international law
What are critical approaches?
What is an approach = the way we look at the world, it is a perspective.
o Humans are looking at international law through a particular critical
lens.
Critical approaches are an essential part of understanding international
law. It is important to think critical.
3 different approaches that we are going to look at:
o Third world approaches on international law (TWAIL)
o Feminist approaches to international law
o Critical environmental approaches to international law
Third world approach on international law (TWAIL)
This approach originates from anti-colonialism movements. With the idea that
colonialism still has an impact on international law nowadays. Colonialism could
lead to deconstruction and reconstruction of international law. TWAIL has two
focuses: historical and modern.
Colonialism = continuing regime of ‘domination and subordination’
Historical focus:
Colonialism is seen as the ‘tainted origins’ of international law.
One of the father figures (Francesco di Victoria) of international law came
up with the idea that there are ‘civilised’ and ‘uncivilised’ worlds. And
asked the question what do we do when those two worlds meet?
International law is seen as a tool for colonialism.
Modern focus:
Representation of international law:
o Individuals => judges of the ICJ need to come from a different
background.
o Within institutions => for example the UNSC (executive organ of the
UN), has five permanent members (UK, US, China, Russia and
France). These five permanent members have a veto power.
Decolonised states are still bound by the legal order that was created by
Europe.
There are ‘developed’ and ‘developing’ states:
o This is the more modern idea of the ‘civilized and uncivilised
nations’
