Literature Public International Law
Week 1
Chapter 1. The setting of international law
International law is not just the law that deals with law and peace, or with genocide and human
rights; it also encompasses rules on trade, on protection of the environment, on shipping, and on the
protection of refugees. We will focus on public international law; this is to regulate relations between
states. Many of the rules of international law also have an effect on companies, individuals, or
minority groups.
History of public international law
Started in the seventeenth century for several reasons:
1. Europe was thought to be congruent to the world at large. Individuals tended to think of
their empires as single entities, with the consequence that law was largely conceptualized as
internal.
2. The Peace of Westphalia, this marked the end of the Thirty Years War.
3. Publication of Hugo Grotius’ On the Law of War and Peace.
Imperialism and colonialism are also connected to international law. The emergence of early modern
international law is comprehensible in the light of the struggle between European powers for
influence elsewhere in the world. Colonialism was about trade and economic gain, so international
law is one way, or another connected to the economy. For the second part of the twentieth century,
the cases that would reach the ICJ tended to be those involving the precise limits of territorial
ownership.
In short, much of international law is related to the global economy. International law is the legal
system regulating the global economy, in much the same way as it has been observed that domestic
legal systems and law school from the late-nineteenth century.
The international legal system
The absence of a single overarching authority is perhaps the most noteworthy characteristic of
international law. International law can be seen as ‘positive morality’: it is more or less binding on
states, but as a matter of morality, not as a matter of law. But how does international law function if
it has no sovereign authority?
Various explanations for this state of affairs:
States themselves make international law; they have little incentive to break it.
Explanation of bureaucratic inertia: a civil servant who routinely implements an international
legal norm five days a week will not all of a sudden tell herself to stop doing so.
Considerations of reciprocity; If state A starts to mistreat B’s citizens, B will do the same.
Role of legitimacy: a rule that is generally perceived as useful and that has been created in
the proper manner may be seen as legitimate and thereby exercise a ‘compliance pull’.
States are few in number and are attached to their territories; they cannot escape from each
other.
International law is not completely devoid of sanctions.
Globalization, global governance, and international law
Globalization affects more than the economy aloe: it also affects cultural and social relations, it has
given religious sentiments a new boost, and it may also have sparked nationalist and regional
feelings. Globalization has also come to be accompanied by what is sometimes referred to as global
governance: the exercise of authority, on the global level, outside regular legal structures. These two
,make it clear that many of the classic concepts are categories of international law may have become
outdated.
Chapter 2. The Making of International Law
International law is predominantly made by states. Since states are considered to be sovereign, it
follows that there is no authority above them; and if there is no authority above them, it follows that
law can only be made with their consent. It does not have a specific document specifying how it is
made. In this chapter the sources of international law will be discussed.
Two ships: Lotus and Wimbledon
Lotus Case
2 August 1926, the steamships Boz-Kourt (Turkish) and Lotus (French) collided in the high seas of the
Turkish coast. The Boz-Kourt was cut in two, eight Turkish nationals died, and the Turkish authorities
started criminal proceedings against Lt Demons, first officer of the Lotus, as well as the captain of the
Boz-Kourt, Hassan Bey.
Both were found guilty by the Criminal Court of Istanbul and sentenced to a fine and some
month’s imprisonment.
The French authorities claimed that Turkey lacked the required jurisdiction to prosecute a foreigner
for acts committed outside Turkish territory. Turkey and France agreed to take the matter to the PCIJ.
Question: Had Turkey, in instituting proceedings against Lt Demons, acted in conflict with the
principles of international law?
The Court discussed: International law governs relations between independent States. The rules of
law binding upon States therefore emanate from their own free will as expressed in conventions or
by usages generally accepted as expressing principles of law and established to regulate the
relations. Restrictions upon the independence of States cannot therefore be presumed.
No prohibition could be found in international law, Court decided that Turkey had not violated
international law.
The Court here laid down the idea of international law as a permissive system; behaviour must be
considered permitted unless and until it is prohibited. The alternative, as argued by France, would
have been to regard international law as a prohibitive system, where behaviour is only lawful if there
is a rule that specifically allows it.
Wimbledon Case
Four years earlier, in its first ever contentious decision (Wimbledon case), the PCIJ had strongly
suggested the outlines of a positivist, permissive international legal order. The Kiel Canal was
declared an international waterway; Germany could not block the passage. When Germany refused
access in 1921, to the steamer Wimbledon flying the English flag and chartered by a French company,
some of those victorious powers started proceedings. By refusing, they claimed that Germany
violated Article 380 of the Versailles Treaty.
Argument of Germany: the Versailles Treaty was difficult to reconcile with sovereignty. Conclusion a
Treat could not be equated with giving up sovereignty. How is it even possible to have law in a
system of sovereign states?
Court shot down Germany’s argument. It disagreed with the position that sovereignty and
international law were fundamentally irreconcilable, and instead suggested that sovereignty and
international law were fundamentally irreconcilable. Sovereignty and international law went hand in
hand.
The two cases together establish that in a horizontal order of sovereign equals international law is by
no means impossible; indeed, it is precisely because states are sovereign that they can make
, international law. But these rules can only be made on the basis of consent. In other words;
international law is often deemed a positivist system in that rules are created by consent of the
states themselves, and do not flow from elsewhere.
Article 38 ICJ Statute
The PCIJ was replaced by the ICJ, Article 38(1) ICJ does not establish a rigid hierarchy of sources, in
particular when it comes to the relationship between customary law and treaties. Two elements of
hierarchy can be seen in article 38:
1. Judicial decisions and the writings of the most highly qualified publicists are listed as
subsidiary means only, and the reference to article 59 ICJ Statute further makes it clear that
judicial decisions have no precedent effect in international law
2. There is also general agreement among international lawyers that general principles of law
have as their main function the filling of gaps.
Treaties
If states want to make a deal, the only instrument at their disposal is the Treaty. Treaties can come in
all forms and sizes, they can be bilateral and multilateral; they can be highly solemn and cast in
language with biblical overtones, but also highly informal.
Customary Law
While written law tends to be more precise, customary law has the advantage that precisely because
it is based on social practices, it is usually deeply engrained in the everyday life of that society. In
international law, customary law has played a big role. Article 38 ICJ defines customary law; the
practice is evidence that there is a custom. The definition provides two main requirements:
1. There must be a general practice
2. This general practice must be accepted as law, or the general practice must be accompanied
by opinion juris, a sense of legal obligation.
Customary law owns it recognition to the circumstance that it reflects what states do. But what if
states breach an existing custom? Here, the distinction between material acts and verbal acts is of
relevance, as it is this distinction which allowed the ICJ to come to terms with the problem of
immoral acts in the Nicaragua Case.
The case arose out of Nicaragua’s claim that the US had used force against it by helping to train
opposition groups, by assisting others in small invasions into Nicaragua, and by laying mines in some
of Nicaragua’s pots and attacking oil installations and a naval base. Since the ICJ was barred from
testing the legality of the US behaviour against the UN Charter, it had to identify whether there
existed a prohibition on the use of force in customary international law.
The Court does not consider that, for a rule to be established as customary, the corresponding
practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of
customary rules, the Court deems it sufficient that the conduct of States should be consistent with
such rules, and that instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule.
In other words: what matters most is what states say they do. If they generally proclaim that the use
of force is illegal, then the occasional use of force does not affect the existing customary rule
(methodological approach). Instead of inductively looking at state practice and drawing conclusions,
it started from the other end; it deduced the existence of a rule from the existence of opinion juris.
Week 1
Chapter 1. The setting of international law
International law is not just the law that deals with law and peace, or with genocide and human
rights; it also encompasses rules on trade, on protection of the environment, on shipping, and on the
protection of refugees. We will focus on public international law; this is to regulate relations between
states. Many of the rules of international law also have an effect on companies, individuals, or
minority groups.
History of public international law
Started in the seventeenth century for several reasons:
1. Europe was thought to be congruent to the world at large. Individuals tended to think of
their empires as single entities, with the consequence that law was largely conceptualized as
internal.
2. The Peace of Westphalia, this marked the end of the Thirty Years War.
3. Publication of Hugo Grotius’ On the Law of War and Peace.
Imperialism and colonialism are also connected to international law. The emergence of early modern
international law is comprehensible in the light of the struggle between European powers for
influence elsewhere in the world. Colonialism was about trade and economic gain, so international
law is one way, or another connected to the economy. For the second part of the twentieth century,
the cases that would reach the ICJ tended to be those involving the precise limits of territorial
ownership.
In short, much of international law is related to the global economy. International law is the legal
system regulating the global economy, in much the same way as it has been observed that domestic
legal systems and law school from the late-nineteenth century.
The international legal system
The absence of a single overarching authority is perhaps the most noteworthy characteristic of
international law. International law can be seen as ‘positive morality’: it is more or less binding on
states, but as a matter of morality, not as a matter of law. But how does international law function if
it has no sovereign authority?
Various explanations for this state of affairs:
States themselves make international law; they have little incentive to break it.
Explanation of bureaucratic inertia: a civil servant who routinely implements an international
legal norm five days a week will not all of a sudden tell herself to stop doing so.
Considerations of reciprocity; If state A starts to mistreat B’s citizens, B will do the same.
Role of legitimacy: a rule that is generally perceived as useful and that has been created in
the proper manner may be seen as legitimate and thereby exercise a ‘compliance pull’.
States are few in number and are attached to their territories; they cannot escape from each
other.
International law is not completely devoid of sanctions.
Globalization, global governance, and international law
Globalization affects more than the economy aloe: it also affects cultural and social relations, it has
given religious sentiments a new boost, and it may also have sparked nationalist and regional
feelings. Globalization has also come to be accompanied by what is sometimes referred to as global
governance: the exercise of authority, on the global level, outside regular legal structures. These two
,make it clear that many of the classic concepts are categories of international law may have become
outdated.
Chapter 2. The Making of International Law
International law is predominantly made by states. Since states are considered to be sovereign, it
follows that there is no authority above them; and if there is no authority above them, it follows that
law can only be made with their consent. It does not have a specific document specifying how it is
made. In this chapter the sources of international law will be discussed.
Two ships: Lotus and Wimbledon
Lotus Case
2 August 1926, the steamships Boz-Kourt (Turkish) and Lotus (French) collided in the high seas of the
Turkish coast. The Boz-Kourt was cut in two, eight Turkish nationals died, and the Turkish authorities
started criminal proceedings against Lt Demons, first officer of the Lotus, as well as the captain of the
Boz-Kourt, Hassan Bey.
Both were found guilty by the Criminal Court of Istanbul and sentenced to a fine and some
month’s imprisonment.
The French authorities claimed that Turkey lacked the required jurisdiction to prosecute a foreigner
for acts committed outside Turkish territory. Turkey and France agreed to take the matter to the PCIJ.
Question: Had Turkey, in instituting proceedings against Lt Demons, acted in conflict with the
principles of international law?
The Court discussed: International law governs relations between independent States. The rules of
law binding upon States therefore emanate from their own free will as expressed in conventions or
by usages generally accepted as expressing principles of law and established to regulate the
relations. Restrictions upon the independence of States cannot therefore be presumed.
No prohibition could be found in international law, Court decided that Turkey had not violated
international law.
The Court here laid down the idea of international law as a permissive system; behaviour must be
considered permitted unless and until it is prohibited. The alternative, as argued by France, would
have been to regard international law as a prohibitive system, where behaviour is only lawful if there
is a rule that specifically allows it.
Wimbledon Case
Four years earlier, in its first ever contentious decision (Wimbledon case), the PCIJ had strongly
suggested the outlines of a positivist, permissive international legal order. The Kiel Canal was
declared an international waterway; Germany could not block the passage. When Germany refused
access in 1921, to the steamer Wimbledon flying the English flag and chartered by a French company,
some of those victorious powers started proceedings. By refusing, they claimed that Germany
violated Article 380 of the Versailles Treaty.
Argument of Germany: the Versailles Treaty was difficult to reconcile with sovereignty. Conclusion a
Treat could not be equated with giving up sovereignty. How is it even possible to have law in a
system of sovereign states?
Court shot down Germany’s argument. It disagreed with the position that sovereignty and
international law were fundamentally irreconcilable, and instead suggested that sovereignty and
international law were fundamentally irreconcilable. Sovereignty and international law went hand in
hand.
The two cases together establish that in a horizontal order of sovereign equals international law is by
no means impossible; indeed, it is precisely because states are sovereign that they can make
, international law. But these rules can only be made on the basis of consent. In other words;
international law is often deemed a positivist system in that rules are created by consent of the
states themselves, and do not flow from elsewhere.
Article 38 ICJ Statute
The PCIJ was replaced by the ICJ, Article 38(1) ICJ does not establish a rigid hierarchy of sources, in
particular when it comes to the relationship between customary law and treaties. Two elements of
hierarchy can be seen in article 38:
1. Judicial decisions and the writings of the most highly qualified publicists are listed as
subsidiary means only, and the reference to article 59 ICJ Statute further makes it clear that
judicial decisions have no precedent effect in international law
2. There is also general agreement among international lawyers that general principles of law
have as their main function the filling of gaps.
Treaties
If states want to make a deal, the only instrument at their disposal is the Treaty. Treaties can come in
all forms and sizes, they can be bilateral and multilateral; they can be highly solemn and cast in
language with biblical overtones, but also highly informal.
Customary Law
While written law tends to be more precise, customary law has the advantage that precisely because
it is based on social practices, it is usually deeply engrained in the everyday life of that society. In
international law, customary law has played a big role. Article 38 ICJ defines customary law; the
practice is evidence that there is a custom. The definition provides two main requirements:
1. There must be a general practice
2. This general practice must be accepted as law, or the general practice must be accompanied
by opinion juris, a sense of legal obligation.
Customary law owns it recognition to the circumstance that it reflects what states do. But what if
states breach an existing custom? Here, the distinction between material acts and verbal acts is of
relevance, as it is this distinction which allowed the ICJ to come to terms with the problem of
immoral acts in the Nicaragua Case.
The case arose out of Nicaragua’s claim that the US had used force against it by helping to train
opposition groups, by assisting others in small invasions into Nicaragua, and by laying mines in some
of Nicaragua’s pots and attacking oil installations and a naval base. Since the ICJ was barred from
testing the legality of the US behaviour against the UN Charter, it had to identify whether there
existed a prohibition on the use of force in customary international law.
The Court does not consider that, for a rule to be established as customary, the corresponding
practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of
customary rules, the Court deems it sufficient that the conduct of States should be consistent with
such rules, and that instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule.
In other words: what matters most is what states say they do. If they generally proclaim that the use
of force is illegal, then the occasional use of force does not affect the existing customary rule
(methodological approach). Instead of inductively looking at state practice and drawing conclusions,
it started from the other end; it deduced the existence of a rule from the existence of opinion juris.
