SAMENVATTING PIL
Inhoud
Samenvatting..................................................................................................................... 2
Week 1: the nature and structure of international law.....................................................2
Week 2: the sources of international law.........................................................................5
Week 3: states and other subjects of international law.................................................11
Week 4: jurisdiction and immunity................................................................................17
Week 5: state responsibility........................................................................................... 22
Week 6: international dispute settlement......................................................................25
Week 7: human rights.................................................................................................... 30
Week 8: peace and security........................................................................................... 33
Arresten............................................................................................................................ 37
Week 2:......................................................................................................................... 37
North Sea Continental Shelf Case (1969):...................................................................37
Week 3:......................................................................................................................... 38
ICJ Reparations for Injuries Advisory Opinion:.............................................................38
Legal Consequence of the Separation of the Chagos Archipelago from Mauritius in
1965........................................................................................................................... 39
Week 4:......................................................................................................................... 40
Jurisdictional Immunities of the State.........................................................................40
Arrest Warrant Case................................................................................................... 42
Week 5:......................................................................................................................... 43
Military and Paramilitary in and against Nicaragua.....................................................43
Week 6:......................................................................................................................... 45
Legality of Nuclear Weapons Advisory Opinions.........................................................45
,SAMENVATTING
WEEK 1: THE NATURE AND STRUCTURE OF INTERNATIONAL LAW
Public international law: the system of the law that regulates the interrelationship of
sovereign states and their rights and duties to one another
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
Public international law concerns the relationships between public individuals or
States
Private international law concerns the relationship between private individuals
International law is primarily made by politicians, as they are the ones who negotiate
treaties. Where politics determines the law, the law also determines politics.
Sources
International law derives primarily from three sources:
Treaties: formal written agreements between States
o For example: the UN Charter of 1945, which establishes key norms on
peace and security
Customary international law: unwritten rules formed through State practice and
opinio juris
o For example: prohibition of torture, which emerged from consistent State
practice and opinion juris
General principles of law recognized by civilized nations
o For example: the principle of good faith (pacta sunt servanda), shared
among many different legal systems and thus recognized internationally
Judicial decisions: interpretations and clarifications by international courts
International law is binding because States accept it as binding. Consent is central. States
remain sovereign and are only bound by rules to which they have agreed, either explicitly
(treaties) or implicitly (custom).
International law is engaged when state interests collide:
States sign a treaty stating the problem
States are able to create customary international law when they behave a certain
way
International judicial organs interpret treaties or decide what falls under the scope
of customary law
Consent to be bound: without consent international law is not binding
History
international law was invented in Europe
Late middle ages:
o Natural law (jus naturale) was implied to individuals and the relations
between them
o Law of people or nations (jus gentium) was inferior to natural law and
occasionally was based on overarching principles of natural law
o Beginning of colonialism
17th and 18th centuries
, o A clearer distinction between jus naturales and jus gentium
o A modern international legal system began to take form
o Hugo Grotius was one of the leading figures and made major contributions
to the development of international law
o The 1648 Peace of Westphalia can be marked as the birth of the
international legal system
Major European powers wanted to create an international order
derived from agreed rules and limits
Compartmentalize territory and individuals into sovereign
States of equal importance
19 century and positivism
th
o State will is the true source of law (consensual theory)
o States could either express their will explicitly in the form of a treaty or
implicitly by customary practices
o As opposed to natural law, there is no universal legal system, but one that
is fragmented and in which States are bound by different legal obligations
Interwar period
o Organization of League of Nations was created
Tasked with maintaining world peace
o Establishment of the Permanent Court of Justice (PJIC) in The Hague
Period after the 2nd world war
o The United Nations replaced the League of Nations to maintain
international peace
Based on state sovereignty, equality and self-determination
Banned use of force
Gave the Security Council authority to maintain peace (including
authorizing force)
Created the General Assembly
Strengthened international law through the International Law
Commission
o International Court of Justice replaced the PCIJ
o North Atlantic Treaty Organization (NATO)
The present
o The international system is based on a liberal international order with
Western values (free markets, individual rights, cooperation)
o This order is weakening due to the rise of non-Western powers such as
China and declining Western influence
o Disagreements between states (e.g. Russia in Crimea, China in the South
China Sea) make global binding treaties harder to achieve
o States increasingly rely on non-binding global agreements or regional
agreements with like-minded states
o In Europe, cooperation within the European Union is criticized for loss of
sovereignty, contributing to Brexit.
The 1648 Peace of Westphalia can be marked as the birth of the international legal
system
International society of individual sovereign states of equal importance
Major European powers wanted to create an international order derived from
agreed rules and limits
o Compartmentalize territory and individuals into sovereign States of equal
importance
, Function of International Law
International law provides legal regulation where national law is insufficient.
Matters become international either because:
Multiple States have competing interests (coexistence)
States choose to internationalize an issue through treaties (cooperation)
This distinction produces two functional categories of international law.
International law of coexistence:
Provides the legal answers to questions that are inherently of interest to more
than one state
Required to separate the powers of the sovereign States and uphold peaceful
coexistence
Examples are: delimitation of territory, the criteria for statehood and the
recognition of new States
States interact among each other -> horizontal
International law of cooperation:
Not necessarily of interest to two or more States, but have become a matter of
international concern through the adoption of a treaty
Examples are: international human rights law, the majority of international
environmental law and international economic law
Optional for sovereign States; States have to give their consent
Sovereignty and Legal Obligations
Although States are sovereign, they are still bound by international law. Legal rules are
necessary to ensure stability and predictability in relations between States. Sovereignty
does not exclude legal constraint; rather, it operates within a framework of agreed rules.
Relationship Between International and National Law
International law is generally considered supreme over national law at the international
level. However, States determine how international obligations operate domestically.
Monist approach: international law will have a direct effect in domestic law.
Therefore, no further action is needed after the ratification (bekrachtigen van
partij worden bij het verdrag)
o Grundnorm: one single legal system or a set of mutually intertwined legal
orders that are presumed to be coherent
Dualist approach: international law doesn’t have direct effect in national law. In
addition, it has to be integrated in or transposed to national law in order to be
effective
o National law and international law are separate legal systems that operate
independently
Exam question: to what extent international law is integrated into the national legal
system depends on the state’s constitutional approach. Explain the difference between
the monist and dualist approach.
Answer: the first difference between the two approaches concerns the way that
international law is integrated in national law. A monist state has domestic law, which
states that international law will have a direct effect in domestic law, once the state has
ratified it at an earlier moment in time (when the state has given its consent). Therefore,
no further action is needed after the ratification for the international law to be directly
Inhoud
Samenvatting..................................................................................................................... 2
Week 1: the nature and structure of international law.....................................................2
Week 2: the sources of international law.........................................................................5
Week 3: states and other subjects of international law.................................................11
Week 4: jurisdiction and immunity................................................................................17
Week 5: state responsibility........................................................................................... 22
Week 6: international dispute settlement......................................................................25
Week 7: human rights.................................................................................................... 30
Week 8: peace and security........................................................................................... 33
Arresten............................................................................................................................ 37
Week 2:......................................................................................................................... 37
North Sea Continental Shelf Case (1969):...................................................................37
Week 3:......................................................................................................................... 38
ICJ Reparations for Injuries Advisory Opinion:.............................................................38
Legal Consequence of the Separation of the Chagos Archipelago from Mauritius in
1965........................................................................................................................... 39
Week 4:......................................................................................................................... 40
Jurisdictional Immunities of the State.........................................................................40
Arrest Warrant Case................................................................................................... 42
Week 5:......................................................................................................................... 43
Military and Paramilitary in and against Nicaragua.....................................................43
Week 6:......................................................................................................................... 45
Legality of Nuclear Weapons Advisory Opinions.........................................................45
,SAMENVATTING
WEEK 1: THE NATURE AND STRUCTURE OF INTERNATIONAL LAW
Public international law: the system of the law that regulates the interrelationship of
sovereign states and their rights and duties to one another
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
Public international law concerns the relationships between public individuals or
States
Private international law concerns the relationship between private individuals
International law is primarily made by politicians, as they are the ones who negotiate
treaties. Where politics determines the law, the law also determines politics.
Sources
International law derives primarily from three sources:
Treaties: formal written agreements between States
o For example: the UN Charter of 1945, which establishes key norms on
peace and security
Customary international law: unwritten rules formed through State practice and
opinio juris
o For example: prohibition of torture, which emerged from consistent State
practice and opinion juris
General principles of law recognized by civilized nations
o For example: the principle of good faith (pacta sunt servanda), shared
among many different legal systems and thus recognized internationally
Judicial decisions: interpretations and clarifications by international courts
International law is binding because States accept it as binding. Consent is central. States
remain sovereign and are only bound by rules to which they have agreed, either explicitly
(treaties) or implicitly (custom).
International law is engaged when state interests collide:
States sign a treaty stating the problem
States are able to create customary international law when they behave a certain
way
International judicial organs interpret treaties or decide what falls under the scope
of customary law
Consent to be bound: without consent international law is not binding
History
international law was invented in Europe
Late middle ages:
o Natural law (jus naturale) was implied to individuals and the relations
between them
o Law of people or nations (jus gentium) was inferior to natural law and
occasionally was based on overarching principles of natural law
o Beginning of colonialism
17th and 18th centuries
, o A clearer distinction between jus naturales and jus gentium
o A modern international legal system began to take form
o Hugo Grotius was one of the leading figures and made major contributions
to the development of international law
o The 1648 Peace of Westphalia can be marked as the birth of the
international legal system
Major European powers wanted to create an international order
derived from agreed rules and limits
Compartmentalize territory and individuals into sovereign
States of equal importance
19 century and positivism
th
o State will is the true source of law (consensual theory)
o States could either express their will explicitly in the form of a treaty or
implicitly by customary practices
o As opposed to natural law, there is no universal legal system, but one that
is fragmented and in which States are bound by different legal obligations
Interwar period
o Organization of League of Nations was created
Tasked with maintaining world peace
o Establishment of the Permanent Court of Justice (PJIC) in The Hague
Period after the 2nd world war
o The United Nations replaced the League of Nations to maintain
international peace
Based on state sovereignty, equality and self-determination
Banned use of force
Gave the Security Council authority to maintain peace (including
authorizing force)
Created the General Assembly
Strengthened international law through the International Law
Commission
o International Court of Justice replaced the PCIJ
o North Atlantic Treaty Organization (NATO)
The present
o The international system is based on a liberal international order with
Western values (free markets, individual rights, cooperation)
o This order is weakening due to the rise of non-Western powers such as
China and declining Western influence
o Disagreements between states (e.g. Russia in Crimea, China in the South
China Sea) make global binding treaties harder to achieve
o States increasingly rely on non-binding global agreements or regional
agreements with like-minded states
o In Europe, cooperation within the European Union is criticized for loss of
sovereignty, contributing to Brexit.
The 1648 Peace of Westphalia can be marked as the birth of the international legal
system
International society of individual sovereign states of equal importance
Major European powers wanted to create an international order derived from
agreed rules and limits
o Compartmentalize territory and individuals into sovereign States of equal
importance
, Function of International Law
International law provides legal regulation where national law is insufficient.
Matters become international either because:
Multiple States have competing interests (coexistence)
States choose to internationalize an issue through treaties (cooperation)
This distinction produces two functional categories of international law.
International law of coexistence:
Provides the legal answers to questions that are inherently of interest to more
than one state
Required to separate the powers of the sovereign States and uphold peaceful
coexistence
Examples are: delimitation of territory, the criteria for statehood and the
recognition of new States
States interact among each other -> horizontal
International law of cooperation:
Not necessarily of interest to two or more States, but have become a matter of
international concern through the adoption of a treaty
Examples are: international human rights law, the majority of international
environmental law and international economic law
Optional for sovereign States; States have to give their consent
Sovereignty and Legal Obligations
Although States are sovereign, they are still bound by international law. Legal rules are
necessary to ensure stability and predictability in relations between States. Sovereignty
does not exclude legal constraint; rather, it operates within a framework of agreed rules.
Relationship Between International and National Law
International law is generally considered supreme over national law at the international
level. However, States determine how international obligations operate domestically.
Monist approach: international law will have a direct effect in domestic law.
Therefore, no further action is needed after the ratification (bekrachtigen van
partij worden bij het verdrag)
o Grundnorm: one single legal system or a set of mutually intertwined legal
orders that are presumed to be coherent
Dualist approach: international law doesn’t have direct effect in national law. In
addition, it has to be integrated in or transposed to national law in order to be
effective
o National law and international law are separate legal systems that operate
independently
Exam question: to what extent international law is integrated into the national legal
system depends on the state’s constitutional approach. Explain the difference between
the monist and dualist approach.
Answer: the first difference between the two approaches concerns the way that
international law is integrated in national law. A monist state has domestic law, which
states that international law will have a direct effect in domestic law, once the state has
ratified it at an earlier moment in time (when the state has given its consent). Therefore,
no further action is needed after the ratification for the international law to be directly
