WEEK 1 – INTRODUCTION TO PIL AS A DISCIPLINE
international law as law
- legal framework to govern relations between states
o states: organized political entities which are the primary subjects of international law
o so not: regulation of behavior of individuals in their relations with one another
- international law: law between nations
- public international law: distinct legal order regulation relations between states
- private international law: describes principles that determine the applicability of a certain law
or set of laws to situations involving individuals with a foreign or transboundary element
o regulates conflicts between rules of different domestic legal orders
o international marriages/business transactions
- international commercial law: regulates transboundary relations between commercial actors
constitutive elements of legal system
1. social construct
2. that consists of rules
3. regulating behaviour
4. which can be enforced
domestic order
- rules legislature
- enforcement of rules judiciary
- decision-making executive
normally follows the Trias Politica
international order
- rules: less clarity about rules
o rules sometimes not codified (custom)
o rules can apply to some states but not to others (consistent objector & treaties)
- enforcement: centralized (e.g. domestic courts)
o lacks overarching sovereign to enforce law through coercive force/sanction
o sometimes primitive
o e.g. Urgenda case
- decision-making: no executive; horizontal relationship between sovereign states
o closest: UN General Assembly: but could at the most only make recommendations and
not decision making)
arguments in favour of international law as a legal system
- recognized legal sources
, - international legal persons (states & io’s)
- rules of interpretation
- precepts of responsibility for breach
- peremptory norms
- lawyers: common vocabulary and approach to international
- states do feel bound
- international inter-dependence
o in the interest of states to abide
- enforcement comes in many forms
CHAPTER 4: INTERNATIONAL LAW AND MUNICIPAL LAW
international law and municipal law
- international law: deals primarily with inter-state relations
- municipal law: addresses relationships between individuals or individuals and the state
(national, internal, local, domestic law)
overlapping issues
- international law leaves application & enforcement to domestic constitutions
- to understand how municipal legal orders have addressed international law and vice versa
monism vs dualism
- dualism: emphasizes the autonomy and distinct nature of municipal legal orders, in which the
state is sovereign and supreme
o neither legal order had the power to create or to modify any legal rules from the other
o positive evidence that treaty obligation has been appropriately ‘transformed’ into
municipal law
o limitation: fails to address the increase in international legal rules that overlap with
municipal legal rules (e.g. protection of human rights)
- monism: conceives that relationship between legal order as more coherent and unified
o validity from rules derive from one common source
o no need for ‘transformation’ of international law into municipal law
o ‘self-executing’
- more pragmatic approach (Fitzmaurice & Rousseau):
o international & municipal legal orders operated as distinct systems
o but in case of incompatibility between obligations, international law would not revoke
rules of municipal law, but would address the conflict through the rules on state
responsibility
o international tribunal declares state in breach of international law
, - however, practice of international and national courts also play an important role in
understanding the relation between international and municipal law
- also: states decide whether its legal order is monist or dualist (NL = monist)
the primacy of international law
- states may not provoke national rules as justifications for a breach of an international
obligation
- art. 3 ILC’s Article on State responsibility
- art. 27 VCLT
o exception art. 46: state may argue that its consent to be bound by treaty has been
invalidated by violation which ‘was manifest and concerned a rule of its internal law of
fundamental importance’
compliance
- state is obliged to make necessary adjustments to its internal law to fulfill valid international
law obligations
- but for a breach to arise, there must be an actual specific failure to apply an international
obligation
- exceptions for situations where agreements provide for states to enact legislation for
implementing provisions then failure itself constitutes of a breach of international obligation
treatment of domestic law
- ‘facts which express the will and constitute the activities of states’
- international court applies national law ad it would be applied in state (no substitution with own
interpretation, but of (highest) national court)
application international law within domestic legal order
3-steps of application
- distinction between customary international law and treaties
o common law: through judicial recognition
o civil law: recognition in constitution
- mechanism of implementation (two methods)
1. ratification into domestic legal order (though most times states provide for automatic
incorporation)
i. civil law: parliamentary ratification
ii. common law: general obligation on domestic courts to construe legislation as
far as possible, in a manner which does not conflict with a State’s international
obligations
2. specific legislative implementation (mostly in dualist systems)
- rank of international law in hierarchy
, WEEK 2: SUBJECTS OF PIL – STATES & PEOPLE
international legal personality
subjects of PIL have international legal personality
- capacity to have rights and duties under IL + to enforce them & to account for breaches
- capacity to create international law
two conceptual clarifications
- ‘subject of international law’: as a purely descriptive/doctrinal concept and not a legal term of
art
- ‘international law’: comprises both general international law rules and treaty law rules
identifying the subject
three main approaches:
- looking at the issue from a purely European perspective
o Advisory Opinion on the Western Sahara (Bilad Chinguitti) §148-152
- using the ‘state’ as a typical model and looking for state-like entities
o Cameroon v. Nigeria
- looking at the possession of ‘rights and obligations’ and excluding objects of IL
ICJ approach:
Reparation for injuries suffered in the service of the United Nations, Advisory opinion, ICJ Reports
1949, 179.
- “does the Organization possess international personality? This is no doubt a doctrinal
expression, which has sometimes given rise to controversy. But it will be used here to mean
that if the Organization is recognized as having that personality, it is an entity capable of
availing itself of obligations incumbent upon its Members (…)
- The subjects of law in any legal system are not necessarily identical in their nature or in
the extent of their rights, and their nature depends upon the needs of the community.
- Throughout its history, the development of international law has been influenced by the
requirements of international life, and the progressive increase in the collective activities of
States has already given rise to instances of action upon the international plane by certain
entities which are not States.”
- “the organization is an international person. That is not the same thing as saying that it is a
State, which it certainly is not, or that its legal personality and rights and duties are the same
as those of a State. Still is the same thing as saying that it is a “a super-State”, whatever that
expression may mean. It does not even imply that all its rights and duties must be upon the
international plane, any more than all the rights and duties of a state must be upon that plane.
What it does mean is that it is a subject of international law and capable of possessing
international rights and duties, and that it has capacity to maintain its rights by
bringing international claims
international law as law
- legal framework to govern relations between states
o states: organized political entities which are the primary subjects of international law
o so not: regulation of behavior of individuals in their relations with one another
- international law: law between nations
- public international law: distinct legal order regulation relations between states
- private international law: describes principles that determine the applicability of a certain law
or set of laws to situations involving individuals with a foreign or transboundary element
o regulates conflicts between rules of different domestic legal orders
o international marriages/business transactions
- international commercial law: regulates transboundary relations between commercial actors
constitutive elements of legal system
1. social construct
2. that consists of rules
3. regulating behaviour
4. which can be enforced
domestic order
- rules legislature
- enforcement of rules judiciary
- decision-making executive
normally follows the Trias Politica
international order
- rules: less clarity about rules
o rules sometimes not codified (custom)
o rules can apply to some states but not to others (consistent objector & treaties)
- enforcement: centralized (e.g. domestic courts)
o lacks overarching sovereign to enforce law through coercive force/sanction
o sometimes primitive
o e.g. Urgenda case
- decision-making: no executive; horizontal relationship between sovereign states
o closest: UN General Assembly: but could at the most only make recommendations and
not decision making)
arguments in favour of international law as a legal system
- recognized legal sources
, - international legal persons (states & io’s)
- rules of interpretation
- precepts of responsibility for breach
- peremptory norms
- lawyers: common vocabulary and approach to international
- states do feel bound
- international inter-dependence
o in the interest of states to abide
- enforcement comes in many forms
CHAPTER 4: INTERNATIONAL LAW AND MUNICIPAL LAW
international law and municipal law
- international law: deals primarily with inter-state relations
- municipal law: addresses relationships between individuals or individuals and the state
(national, internal, local, domestic law)
overlapping issues
- international law leaves application & enforcement to domestic constitutions
- to understand how municipal legal orders have addressed international law and vice versa
monism vs dualism
- dualism: emphasizes the autonomy and distinct nature of municipal legal orders, in which the
state is sovereign and supreme
o neither legal order had the power to create or to modify any legal rules from the other
o positive evidence that treaty obligation has been appropriately ‘transformed’ into
municipal law
o limitation: fails to address the increase in international legal rules that overlap with
municipal legal rules (e.g. protection of human rights)
- monism: conceives that relationship between legal order as more coherent and unified
o validity from rules derive from one common source
o no need for ‘transformation’ of international law into municipal law
o ‘self-executing’
- more pragmatic approach (Fitzmaurice & Rousseau):
o international & municipal legal orders operated as distinct systems
o but in case of incompatibility between obligations, international law would not revoke
rules of municipal law, but would address the conflict through the rules on state
responsibility
o international tribunal declares state in breach of international law
, - however, practice of international and national courts also play an important role in
understanding the relation between international and municipal law
- also: states decide whether its legal order is monist or dualist (NL = monist)
the primacy of international law
- states may not provoke national rules as justifications for a breach of an international
obligation
- art. 3 ILC’s Article on State responsibility
- art. 27 VCLT
o exception art. 46: state may argue that its consent to be bound by treaty has been
invalidated by violation which ‘was manifest and concerned a rule of its internal law of
fundamental importance’
compliance
- state is obliged to make necessary adjustments to its internal law to fulfill valid international
law obligations
- but for a breach to arise, there must be an actual specific failure to apply an international
obligation
- exceptions for situations where agreements provide for states to enact legislation for
implementing provisions then failure itself constitutes of a breach of international obligation
treatment of domestic law
- ‘facts which express the will and constitute the activities of states’
- international court applies national law ad it would be applied in state (no substitution with own
interpretation, but of (highest) national court)
application international law within domestic legal order
3-steps of application
- distinction between customary international law and treaties
o common law: through judicial recognition
o civil law: recognition in constitution
- mechanism of implementation (two methods)
1. ratification into domestic legal order (though most times states provide for automatic
incorporation)
i. civil law: parliamentary ratification
ii. common law: general obligation on domestic courts to construe legislation as
far as possible, in a manner which does not conflict with a State’s international
obligations
2. specific legislative implementation (mostly in dualist systems)
- rank of international law in hierarchy
, WEEK 2: SUBJECTS OF PIL – STATES & PEOPLE
international legal personality
subjects of PIL have international legal personality
- capacity to have rights and duties under IL + to enforce them & to account for breaches
- capacity to create international law
two conceptual clarifications
- ‘subject of international law’: as a purely descriptive/doctrinal concept and not a legal term of
art
- ‘international law’: comprises both general international law rules and treaty law rules
identifying the subject
three main approaches:
- looking at the issue from a purely European perspective
o Advisory Opinion on the Western Sahara (Bilad Chinguitti) §148-152
- using the ‘state’ as a typical model and looking for state-like entities
o Cameroon v. Nigeria
- looking at the possession of ‘rights and obligations’ and excluding objects of IL
ICJ approach:
Reparation for injuries suffered in the service of the United Nations, Advisory opinion, ICJ Reports
1949, 179.
- “does the Organization possess international personality? This is no doubt a doctrinal
expression, which has sometimes given rise to controversy. But it will be used here to mean
that if the Organization is recognized as having that personality, it is an entity capable of
availing itself of obligations incumbent upon its Members (…)
- The subjects of law in any legal system are not necessarily identical in their nature or in
the extent of their rights, and their nature depends upon the needs of the community.
- Throughout its history, the development of international law has been influenced by the
requirements of international life, and the progressive increase in the collective activities of
States has already given rise to instances of action upon the international plane by certain
entities which are not States.”
- “the organization is an international person. That is not the same thing as saying that it is a
State, which it certainly is not, or that its legal personality and rights and duties are the same
as those of a State. Still is the same thing as saying that it is a “a super-State”, whatever that
expression may mean. It does not even imply that all its rights and duties must be upon the
international plane, any more than all the rights and duties of a state must be upon that plane.
What it does mean is that it is a subject of international law and capable of possessing
international rights and duties, and that it has capacity to maintain its rights by
bringing international claims
