Internationaal recht midterm
Week 1
What is public international law?
International law is the totality of legal rules concerning the (sovereign) relations amongst
States, international organizations and other subjects of international law, including the
rights and duties of individuals that are relevant to the international community.
Some features of international law
1. Sovereign equality of States Treaty of Westphalia 1648
sovereign states are the main actors of international law
2. Relatively little organizations
3. Legal practice matters for understanding the law
4. Universal character in tension with legal cultural differences
5. Tension between law and politics
6. Move from co-existence to cooperation
Sovereign: each state minds their own territory, people and politics. Other states are not
allowed to interfere with others’ sovereignty
If each state is sovereign and equal, one state cannot tell another state what the law is and
which law you’re bound by.
formal equality (every country gets one vote, no matter how big is is)
Consent to be bound it refers to the consent to be bound to a certain treaty. A state is not
bound, if it does not first ‘consent to be bound’. States are considered to be equal, and
sovereign. Because a state gives up some of its sovereignty when becoming part of a treaty,
it must do so willingly. Sometimes consent is irrelevant: states are always bound, regardless
of consent, to jus cogens (zonder toestemming te geven moeten landen zich aan het
dwingend recht houden).
What is international legal personality and who can have it?
Subjects of international law
Actors: any individual, body or entity that has an impact on international relations
Subjects: an individual, body or entity possessing international rights and duties
states are full subjects of international law, they don’t have to prove anything, they are a
state and everyone has to recognize them as a subject of international law.
Partial legal personality (subjects): international organizations, individuals, multi-national
corporations, insurgents etc.
they have to prove to for example states that they are subject of international law
Legal subjects are not necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the community.
,What is a state
A state has
a. a permanent population,
b. a defined territory,
c. government, and
d. capacity to enter into relations with other states
Two different approach to statehood:
1. The declaratory theory states that these four criteria are enough, and that the
recognition by other states or international organizations is merely a declaration of
formal acceptance of the existing fact that the recognized entity is already a state.
2. The constitutive theory states that there is a fifth criteria for statehood: the act of
recognition itself.
International law adopts the declaratory approach. Why would we care about recognition
then? What is the point? maybe recognition is evidence that a state has filled those four
requirements of a state.
Sources of international law Art. 38 statue international court of justice
1. International conventions (treaties)
2. International custom
3. The general principles of law
there is no hierarchy, sometimes one of the three sources if more relatable
Judicial decisions and teachings of most highly qualified publics are not sources of
international law, but they are aids that you can read to help you figure out if there is
international law.
Treaty means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.
How to figure out if it is a treaty? read the article, are they creating rights and
obligations? Consent to be bound?
Law making treaty: universal ratification, problem which concerns more states.
Treaty-contracts: smaller number of states coming together to address a specific issue, only
important to them (could be only two states)
Customary law (gewoonterecht) unwritten
1. Opinion 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 of most affected Stated
,Consequence? Binding upon all states
Unless: persistent objector (aanhoudende bezwaarmaker)
Exeption: jus cogens/peremptory norms states can never ever contract out of eg. Slavery
What is the relationship between sources?
Lex specialis: if international law is consent based, then a more specific law has to prevail
over a general law.
Lex posterior: most recent and accurate expression of states’ consent will prevail
Jus cogens: you can never contract out of these norms
What if a state hasn’t ratified a treaty yet? Is the state bound?
yes, the state would still be bound: crystallization/codification – coexistence
- You can have an agreement in a treaty and customary law that are identical, in that
situation many states see it as opinio juris crystallization of custom
- States identify customary law and write it down in a treaty codification of custom
Can you use a customary law to interpret a treaty?
Yes, states don’t want the law going into different directions, if there is a relevant piece of
customary law that will help you interpret the treaty, you should use it.
, Week 2
What is the secondary legal test for state responsibility for internationally wrongful acts
Lotus principle – you have two kinds of legal rules.
Primary rules: international legal rules that limit state conduct
Secondary rules: international legal “rules about rules” when had a state violated the
primary rules and what are the consequences for violating these rules?
(e.g. Articles on Responsibility of States for Internationally Wrongful Acts 2001)
arsiwa
For which acts can states be held responsible
Art. 2 ARSIW
There is an internationally wrongful act of a State when conduct consisting of an action or
omission
a. Is attributable to the State under international law; and
Attribution: legal link between abstract State and individual conduct that breaches
international law
1. Any state organ under national law (executive legislative, judicial, sub-national)
2. Any governmental authority under national law (contracted prison guards,
immigration officials)
Individual must act in official capacity
Attribution possible even if individual conduct ultra vires, meaning violates
national law
b. constitutes a breach of an international obligation of the State
1. international obligation (international verplichting),
2. belonging to a State
3. Act or omission
4. Breach of international obligation
5. Breach occurred when obligation existed
Breach of duty: schending van plichten
Week 1
What is public international law?
International law is the totality of legal rules concerning the (sovereign) relations amongst
States, international organizations and other subjects of international law, including the
rights and duties of individuals that are relevant to the international community.
Some features of international law
1. Sovereign equality of States Treaty of Westphalia 1648
sovereign states are the main actors of international law
2. Relatively little organizations
3. Legal practice matters for understanding the law
4. Universal character in tension with legal cultural differences
5. Tension between law and politics
6. Move from co-existence to cooperation
Sovereign: each state minds their own territory, people and politics. Other states are not
allowed to interfere with others’ sovereignty
If each state is sovereign and equal, one state cannot tell another state what the law is and
which law you’re bound by.
formal equality (every country gets one vote, no matter how big is is)
Consent to be bound it refers to the consent to be bound to a certain treaty. A state is not
bound, if it does not first ‘consent to be bound’. States are considered to be equal, and
sovereign. Because a state gives up some of its sovereignty when becoming part of a treaty,
it must do so willingly. Sometimes consent is irrelevant: states are always bound, regardless
of consent, to jus cogens (zonder toestemming te geven moeten landen zich aan het
dwingend recht houden).
What is international legal personality and who can have it?
Subjects of international law
Actors: any individual, body or entity that has an impact on international relations
Subjects: an individual, body or entity possessing international rights and duties
states are full subjects of international law, they don’t have to prove anything, they are a
state and everyone has to recognize them as a subject of international law.
Partial legal personality (subjects): international organizations, individuals, multi-national
corporations, insurgents etc.
they have to prove to for example states that they are subject of international law
Legal subjects are not necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the community.
,What is a state
A state has
a. a permanent population,
b. a defined territory,
c. government, and
d. capacity to enter into relations with other states
Two different approach to statehood:
1. The declaratory theory states that these four criteria are enough, and that the
recognition by other states or international organizations is merely a declaration of
formal acceptance of the existing fact that the recognized entity is already a state.
2. The constitutive theory states that there is a fifth criteria for statehood: the act of
recognition itself.
International law adopts the declaratory approach. Why would we care about recognition
then? What is the point? maybe recognition is evidence that a state has filled those four
requirements of a state.
Sources of international law Art. 38 statue international court of justice
1. International conventions (treaties)
2. International custom
3. The general principles of law
there is no hierarchy, sometimes one of the three sources if more relatable
Judicial decisions and teachings of most highly qualified publics are not sources of
international law, but they are aids that you can read to help you figure out if there is
international law.
Treaty means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.
How to figure out if it is a treaty? read the article, are they creating rights and
obligations? Consent to be bound?
Law making treaty: universal ratification, problem which concerns more states.
Treaty-contracts: smaller number of states coming together to address a specific issue, only
important to them (could be only two states)
Customary law (gewoonterecht) unwritten
1. Opinion 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 of most affected Stated
,Consequence? Binding upon all states
Unless: persistent objector (aanhoudende bezwaarmaker)
Exeption: jus cogens/peremptory norms states can never ever contract out of eg. Slavery
What is the relationship between sources?
Lex specialis: if international law is consent based, then a more specific law has to prevail
over a general law.
Lex posterior: most recent and accurate expression of states’ consent will prevail
Jus cogens: you can never contract out of these norms
What if a state hasn’t ratified a treaty yet? Is the state bound?
yes, the state would still be bound: crystallization/codification – coexistence
- You can have an agreement in a treaty and customary law that are identical, in that
situation many states see it as opinio juris crystallization of custom
- States identify customary law and write it down in a treaty codification of custom
Can you use a customary law to interpret a treaty?
Yes, states don’t want the law going into different directions, if there is a relevant piece of
customary law that will help you interpret the treaty, you should use it.
, Week 2
What is the secondary legal test for state responsibility for internationally wrongful acts
Lotus principle – you have two kinds of legal rules.
Primary rules: international legal rules that limit state conduct
Secondary rules: international legal “rules about rules” when had a state violated the
primary rules and what are the consequences for violating these rules?
(e.g. Articles on Responsibility of States for Internationally Wrongful Acts 2001)
arsiwa
For which acts can states be held responsible
Art. 2 ARSIW
There is an internationally wrongful act of a State when conduct consisting of an action or
omission
a. Is attributable to the State under international law; and
Attribution: legal link between abstract State and individual conduct that breaches
international law
1. Any state organ under national law (executive legislative, judicial, sub-national)
2. Any governmental authority under national law (contracted prison guards,
immigration officials)
Individual must act in official capacity
Attribution possible even if individual conduct ultra vires, meaning violates
national law
b. constitutes a breach of an international obligation of the State
1. international obligation (international verplichting),
2. belonging to a State
3. Act or omission
4. Breach of international obligation
5. Breach occurred when obligation existed
Breach of duty: schending van plichten
