PUBLIC INTERNATIONAL LAW – NOTES
Week 1: Introduction + Ways of thinking about
international law
Hernández, Chapter 1 – The history and nature of international law
Introduction: International law as law (p3)
Rather than regulating the behaviour of individuals in their relations with one another, international
law is a legal framework to govern the relations between ‘States’.
States are the primary subjects of international law.
Public v private:
o Private: principles that determine the applicability of certain laws to situations involving
individuals with a foreign element.
o Private regulates the conflicts between rules of different domestic legal orders
o Public regulates the relations between States.
Public international law has exceeded its foundations as the law of inter-State relations
International law has always been purposive, structuring relations between States for specific
ends. Purposes shift overtime in line with political and social developments.
The founding myths of modern international law (p5)
The 1648 Peace of Westphalia is often taken as the conceptual starting point for modern
international law in the European State system.
It was then spread around the world through European colonialism.
o Protestant reformation in central and northern Europe denouncement of ecclesiastical
structure of Roman Catholic Church religious wars in Europe Thirty Years’ War in
1618-1648
o These wars ended with the Peace of Westphalia – the name for several treaties signed at
Münster and Osnabrück in 1648.
o These treaties are part of the founding myth in the emergence of ‘modern international
law’. (p4)
Some argue the Westphalia thesis focuses too much on the conceptual basis for international law
and not on the daily activities governed by international law (i.e. treaties, embassies, claims to
jurisdiction or immunity – which all go back beyond 1648 and have structured international
relations for millennia).
The PoW rejected the secular power of the Pope over the internal affairs of other States
o According to the Peace Treaties, Catholic and Protestant States would henceforth be
sovereign and equal, under no higher power.
o Under the Peace of Westphalia, each State would henceforth be free to choose for
themselves which religion to adopt
, The concepts of sovereignty and non-interference were not necessarily new, however, the
characterization of the State as an organized territorial entity capable of guaranteeing its
commitments was established in Westphalia
The PoW stands out as one of the first modern European instances of conscious, multilateral
ordering through law (at least in Europe).
The rise and decline of natural law (1648–1815) (p6)
Hugo Grotius: The most famous international lawyer of the period was Hugo de Groot / Hugo
Grotius.
Grotius contributions:
o Instrumental in establishing the freedom of the seas, in that they could not be
appropriated by one State but were open to all. This doctrine was especially beneficial for
the Dutch East India Company.
o Grotius contributed to the modern understanding of the laws of war (see chapters 14
and 15).
o Grotius’ most lasting contribution was his depiction of the nature of international law:
In his book, On the Law of War and Peace, he portrayed international law as a
combination of two distinct bodies: jus gentium and jus naturale
Jus gentium: Law of nations.
o For Vitoria, jus gentium did not describe the law between nations,
but would describe the laws that applied to a community of all
world citizens
o Suárez would distinguish jus gentium inter se (applicable to
relations between nations) from jus gentium intra se (the laws
applicable within nations), suggesting that the former included
the law of war and peace, diplomatic relations, and trade
agreements.
Jus naturale: Universal legal and moral principles based on funadmenta
ideas of right and wrong. Jus gentium is regarded as a form of jus
naturale,
Emmerich de Vattel (1714–67) adhered to Grotian thought and wrote the ‘first international law
textbook’ – The Law of Nations.
The seventeenth and eighteenth centuries were notable for the supplanting of religiosity with a
reliance on human reason and the concept of ‘natural rights’ of individuals, culminating in the
American and French Revolutions of 1776 and 1789.
The nineteenth century and the rise of positivism (1815–1914) (p9)
Congress of Vienna: The 1815 Congress of Vienna marked a turning point in European
international relations.
For the first time, certain ‘Great Powers’ (Austria, Great Britain, Prussia, Russia, and a
rehabilitated France) within the ‘Concert of Europe’ could intervene collectively, where they
deemed it necessary to preserve peace.
Though the Concert of Europe system lacked formal institutional structure and depended entirely
on the goodwill of the Great Powers themselves, the system entrenched the idea that certain
values needed safeguarding through international law.
The notion that certain States carried special responsibilities under international law, premised on
a claimed or assumed cultural, material, or legal superiority, has persisted well into the twenty-first
century.
, The ‘Concert system’ legacy that ‘some States are more equal than others’ still persists: there are
still five permanent members of the United Nations Security Council (see later, Section 1.4.2)
which alone hold the power of veto in the only international organ capable of authorizing binding
enforcement measures on all other States.
Further developments in the nineteenth century (p11)
The nineteenth century was marked by unprecedented cooperation between States.
o The first permanent international organizations were founded, including the International
Telegraphic Union (1865) and the Universal Postal Union (1874).
o States began to engage in multilateral treaty-making on matters of common concern,
such as the first Geneva Convention (1864) protecting the wounded during wartime.
These efforts culminated in the 1899 and 1907 Hague Peace Conferences, the thirteen Hague
Conventions on the conduct of war, and the Permanent Court of Arbitration (first permanent
institution to offer permanent services in relation to inter-State dispute settlement).
International lawyers recast themselves as neutral observers of political and diplomatic
questions, and instead engaged in a technical, expert study of international legal rules.
o The strategy of depoliticization and professionalization of international lawyers
during the nineteenth century was crucial in serving to advance Europe’s self-proclaimed
‘civilizing mission’ during its unparalleled material and intellectual dominance of the world.
o [Question] Boisson de Chazourne explains that both ‘founding fathers’ and more recent
prominent international lawyers were both academics and international law practitioners.
How do you see your future role as an international lawyer? Can the roles of academic,
expert, practitioner, activist and more be reconciled? Should/can international lawyers be
neutral actors?
Colonialism and empire (p12)
In many respects, international law was complicit in colonialism.
o It provided the legal vocabulary and concepts which facilitated the conquest of non-
European lands by European powers.
For example, uti possedetis – newly independent States’ territorial claims followed existing
colonial boundaries (had often been drawn to accommodate imperial interests).
The twentieth century (p15)
Twentieth century consolidated the international legal system.
Dominant intellectual approach was legal positivism (existence and content of law depends of
positive social facts (legislation and judicial decision), rather than moral merit alone).
The twentieth century was punctuated by the two world wars and the proliferation of
international institutions which marked the end of each war.
WWI and Leage of Nations:
o WWI ended with the Paris Peace Conference of 1919, in which the Allies (chief among
them the UK, France, Italy, Japan, and the USA) imposed terms on the defeated powers,
in particular Germany, in the Treaty of Versailles.
o By far the most important development for international lawyers was the signing of the
Covenant of the League of Nations:
Ambitious endeavour
Aim captured in Article 1: to ‘organize the international life of the family of
nations’.
, Headquartered in Geneva, the League was the first inter-State organization
that aspired to universal membership, open to ‘any fully self-governing State,
Dominion or Colony’
Broad mandate went beyond traditional technical matters, and included the
establishment of the ‘Mandate system’ of governance,
Perhaps in a last gasp of European colonialism the international institution was
tasked with ‘creating sovereignty out of the backwards peoples and
territories’ under mandate.
o The LoN convened an Assembly in which all members were represented.
o However, it was dominated by its Council – where permanent seats were held by the
UK, France, Italy and Japan.
o The League era was marked by the establishment of the Permanent Court of International
Justice in The Hague.
This was the first international court
PCIJ emerged after several earlier efforts at international adjudication had failed
It was tasked with the mandate of applying international law.
o Although the LoN period brough several innovations (e.g. first multilateral human rights
treaties), it was fatally crippled from the start by the non-participation of several
crucial powers and failure to prevent the start of WWII.
The US Senate did not ratify the Covenant of the League.
The Soviet Union, ostracized for its revolutionary communist government, joined
only belatedly in 1934, and was expelled in 1939 following invasion of Finland.
Germany was only granted admission in 1926 and withdrew in 1933
Japan and Italy, despite being permanent Council members, withdrew in order to
pursue territorial ambitions in Manchuria in 1932 and Ethiopia in 1936,
respectively.
The United Nations during the Cold War (1945–89) (p16)
WWII: In response to the unprecedented savagery of WWII, the Charter of the United Nations
was signed in San Francisco on 26 June 1945.
o The Charter came into force on 24 October 1945, in the shadow of the immense
destruction from the dropping of atomic bombs on Hiroshima and Nagasaki in August
1945.
The UN’s purposes went further than the LoN:
o Promote respect for equal rights and the self-determination of peoples and a ‘universal
peace’ between States.
o Called for cooperation on economic, social, cultural, and humanitarian questions
o Promoted respect for human rights without discrimination.
o Article 1 charged the United Nations itself to be a centre for harmonizing the actions of
States in the attainment of these common ends.
The UN’s institutional structure, with six principal organs (see Chapter 6, Section 6.7.1)
represented an iterative evolution from the basic structure of the League. These principle organs
are created under Article 7(1) of the Charter:
o General Assembly composed of all States,
o Security Council with responsibility (and considerable discretion) over collective security,
o ICJ (continuation of the PCIJ) as its principal judicial organ;
o Economic and Social Council (ECOSOC);
o Trusteeship Counsil;
o Secretariat.
Week 1: Introduction + Ways of thinking about
international law
Hernández, Chapter 1 – The history and nature of international law
Introduction: International law as law (p3)
Rather than regulating the behaviour of individuals in their relations with one another, international
law is a legal framework to govern the relations between ‘States’.
States are the primary subjects of international law.
Public v private:
o Private: principles that determine the applicability of certain laws to situations involving
individuals with a foreign element.
o Private regulates the conflicts between rules of different domestic legal orders
o Public regulates the relations between States.
Public international law has exceeded its foundations as the law of inter-State relations
International law has always been purposive, structuring relations between States for specific
ends. Purposes shift overtime in line with political and social developments.
The founding myths of modern international law (p5)
The 1648 Peace of Westphalia is often taken as the conceptual starting point for modern
international law in the European State system.
It was then spread around the world through European colonialism.
o Protestant reformation in central and northern Europe denouncement of ecclesiastical
structure of Roman Catholic Church religious wars in Europe Thirty Years’ War in
1618-1648
o These wars ended with the Peace of Westphalia – the name for several treaties signed at
Münster and Osnabrück in 1648.
o These treaties are part of the founding myth in the emergence of ‘modern international
law’. (p4)
Some argue the Westphalia thesis focuses too much on the conceptual basis for international law
and not on the daily activities governed by international law (i.e. treaties, embassies, claims to
jurisdiction or immunity – which all go back beyond 1648 and have structured international
relations for millennia).
The PoW rejected the secular power of the Pope over the internal affairs of other States
o According to the Peace Treaties, Catholic and Protestant States would henceforth be
sovereign and equal, under no higher power.
o Under the Peace of Westphalia, each State would henceforth be free to choose for
themselves which religion to adopt
, The concepts of sovereignty and non-interference were not necessarily new, however, the
characterization of the State as an organized territorial entity capable of guaranteeing its
commitments was established in Westphalia
The PoW stands out as one of the first modern European instances of conscious, multilateral
ordering through law (at least in Europe).
The rise and decline of natural law (1648–1815) (p6)
Hugo Grotius: The most famous international lawyer of the period was Hugo de Groot / Hugo
Grotius.
Grotius contributions:
o Instrumental in establishing the freedom of the seas, in that they could not be
appropriated by one State but were open to all. This doctrine was especially beneficial for
the Dutch East India Company.
o Grotius contributed to the modern understanding of the laws of war (see chapters 14
and 15).
o Grotius’ most lasting contribution was his depiction of the nature of international law:
In his book, On the Law of War and Peace, he portrayed international law as a
combination of two distinct bodies: jus gentium and jus naturale
Jus gentium: Law of nations.
o For Vitoria, jus gentium did not describe the law between nations,
but would describe the laws that applied to a community of all
world citizens
o Suárez would distinguish jus gentium inter se (applicable to
relations between nations) from jus gentium intra se (the laws
applicable within nations), suggesting that the former included
the law of war and peace, diplomatic relations, and trade
agreements.
Jus naturale: Universal legal and moral principles based on funadmenta
ideas of right and wrong. Jus gentium is regarded as a form of jus
naturale,
Emmerich de Vattel (1714–67) adhered to Grotian thought and wrote the ‘first international law
textbook’ – The Law of Nations.
The seventeenth and eighteenth centuries were notable for the supplanting of religiosity with a
reliance on human reason and the concept of ‘natural rights’ of individuals, culminating in the
American and French Revolutions of 1776 and 1789.
The nineteenth century and the rise of positivism (1815–1914) (p9)
Congress of Vienna: The 1815 Congress of Vienna marked a turning point in European
international relations.
For the first time, certain ‘Great Powers’ (Austria, Great Britain, Prussia, Russia, and a
rehabilitated France) within the ‘Concert of Europe’ could intervene collectively, where they
deemed it necessary to preserve peace.
Though the Concert of Europe system lacked formal institutional structure and depended entirely
on the goodwill of the Great Powers themselves, the system entrenched the idea that certain
values needed safeguarding through international law.
The notion that certain States carried special responsibilities under international law, premised on
a claimed or assumed cultural, material, or legal superiority, has persisted well into the twenty-first
century.
, The ‘Concert system’ legacy that ‘some States are more equal than others’ still persists: there are
still five permanent members of the United Nations Security Council (see later, Section 1.4.2)
which alone hold the power of veto in the only international organ capable of authorizing binding
enforcement measures on all other States.
Further developments in the nineteenth century (p11)
The nineteenth century was marked by unprecedented cooperation between States.
o The first permanent international organizations were founded, including the International
Telegraphic Union (1865) and the Universal Postal Union (1874).
o States began to engage in multilateral treaty-making on matters of common concern,
such as the first Geneva Convention (1864) protecting the wounded during wartime.
These efforts culminated in the 1899 and 1907 Hague Peace Conferences, the thirteen Hague
Conventions on the conduct of war, and the Permanent Court of Arbitration (first permanent
institution to offer permanent services in relation to inter-State dispute settlement).
International lawyers recast themselves as neutral observers of political and diplomatic
questions, and instead engaged in a technical, expert study of international legal rules.
o The strategy of depoliticization and professionalization of international lawyers
during the nineteenth century was crucial in serving to advance Europe’s self-proclaimed
‘civilizing mission’ during its unparalleled material and intellectual dominance of the world.
o [Question] Boisson de Chazourne explains that both ‘founding fathers’ and more recent
prominent international lawyers were both academics and international law practitioners.
How do you see your future role as an international lawyer? Can the roles of academic,
expert, practitioner, activist and more be reconciled? Should/can international lawyers be
neutral actors?
Colonialism and empire (p12)
In many respects, international law was complicit in colonialism.
o It provided the legal vocabulary and concepts which facilitated the conquest of non-
European lands by European powers.
For example, uti possedetis – newly independent States’ territorial claims followed existing
colonial boundaries (had often been drawn to accommodate imperial interests).
The twentieth century (p15)
Twentieth century consolidated the international legal system.
Dominant intellectual approach was legal positivism (existence and content of law depends of
positive social facts (legislation and judicial decision), rather than moral merit alone).
The twentieth century was punctuated by the two world wars and the proliferation of
international institutions which marked the end of each war.
WWI and Leage of Nations:
o WWI ended with the Paris Peace Conference of 1919, in which the Allies (chief among
them the UK, France, Italy, Japan, and the USA) imposed terms on the defeated powers,
in particular Germany, in the Treaty of Versailles.
o By far the most important development for international lawyers was the signing of the
Covenant of the League of Nations:
Ambitious endeavour
Aim captured in Article 1: to ‘organize the international life of the family of
nations’.
, Headquartered in Geneva, the League was the first inter-State organization
that aspired to universal membership, open to ‘any fully self-governing State,
Dominion or Colony’
Broad mandate went beyond traditional technical matters, and included the
establishment of the ‘Mandate system’ of governance,
Perhaps in a last gasp of European colonialism the international institution was
tasked with ‘creating sovereignty out of the backwards peoples and
territories’ under mandate.
o The LoN convened an Assembly in which all members were represented.
o However, it was dominated by its Council – where permanent seats were held by the
UK, France, Italy and Japan.
o The League era was marked by the establishment of the Permanent Court of International
Justice in The Hague.
This was the first international court
PCIJ emerged after several earlier efforts at international adjudication had failed
It was tasked with the mandate of applying international law.
o Although the LoN period brough several innovations (e.g. first multilateral human rights
treaties), it was fatally crippled from the start by the non-participation of several
crucial powers and failure to prevent the start of WWII.
The US Senate did not ratify the Covenant of the League.
The Soviet Union, ostracized for its revolutionary communist government, joined
only belatedly in 1934, and was expelled in 1939 following invasion of Finland.
Germany was only granted admission in 1926 and withdrew in 1933
Japan and Italy, despite being permanent Council members, withdrew in order to
pursue territorial ambitions in Manchuria in 1932 and Ethiopia in 1936,
respectively.
The United Nations during the Cold War (1945–89) (p16)
WWII: In response to the unprecedented savagery of WWII, the Charter of the United Nations
was signed in San Francisco on 26 June 1945.
o The Charter came into force on 24 October 1945, in the shadow of the immense
destruction from the dropping of atomic bombs on Hiroshima and Nagasaki in August
1945.
The UN’s purposes went further than the LoN:
o Promote respect for equal rights and the self-determination of peoples and a ‘universal
peace’ between States.
o Called for cooperation on economic, social, cultural, and humanitarian questions
o Promoted respect for human rights without discrimination.
o Article 1 charged the United Nations itself to be a centre for harmonizing the actions of
States in the attainment of these common ends.
The UN’s institutional structure, with six principal organs (see Chapter 6, Section 6.7.1)
represented an iterative evolution from the basic structure of the League. These principle organs
are created under Article 7(1) of the Charter:
o General Assembly composed of all States,
o Security Council with responsibility (and considerable discretion) over collective security,
o ICJ (continuation of the PCIJ) as its principal judicial organ;
o Economic and Social Council (ECOSOC);
o Trusteeship Counsil;
o Secretariat.
