Public international law periode 3
Week 1: the foundations and structure of international law
Modern international law:
Born in the 17th century (1648)
The peace of Westphalia
Positivsm vs natural law: wich one prevailed
The emerge of formal international institutional: Int Telegraph Union
and Universal Postal Union
From 1945: the development from international law the importance of
regulation
9/11: what if a group of individuals affect the safety of the state and the
citizens
National and international law:
Domestic law:
Regulates the relation between the states and the Nationals
International law:
The law between different states and their citizens.
Regulation between national and international law:
Three different legal systems:
1. Monism: international law directly applies to national law
2. Dualism: two different legal systems, the international law needs to
be adopted into de national law, before it has effect.
3. Pluralism: relationship between the two systems is more complex
and diverse. Some laws work directly and some need to be
transferred
Coexistence: states can only exist if they can coexist, regulating issues
makes this possible for example the regulating of force.
The most important are the human rights.
Cooperation: you don’t have to corporate with the other states, but if you
do, it will be in your best interest. Cooperation can be a move to
coexistence.
Sovereignty: states have supreme power over their territory and may not
be subject to the jurisdiction of other states. Each state has one formal
vote, which counts equally.
Consent: states must consent to be bound by international rules.
Reflected in the fabric of international law: sources, jurisdiction,
immunities
International law beyond sovereignty and consent:
Justice
, International community
Value based legal order
Critique on international law:
Cannot be enforce
States will act in their best interests regardless of the rules
Just a collection of principles and values
“Almost all nations observe almost all principles of international law and
almost all of their obligations almost all of the time” Louis Henkin
Why do states comply with international law?
The desire for order and predictability over chaos
Consent and obedience: sovereign equality of states
Legitimacy: credibility, reputation
Enforcement mechanisms
Non state actors: actors in the international law, that aren’t states but do
have rights. For example, cooperation’s or organisations.
Week 2: the sources of international law
Article 38 ICJ Statue (the sources of international law):
a. International conventions (general or particular)
b. International custom, as evidence of a general practice accepted as
law
c. The general principles of law recognized by civilized nations
d. Judicial decisions and the teachings of the most highly qualified
publicists, as subsidiary means for the determination of rules of law
The definition of treaties:
Vienna Convention of the Law of Treaties (1969):
Leading instrument on the law of treaties
Applicable only to treaties concluded after entry into force of VCLT
But: reflects custom
Complementary, not full harmonization
Who can adopt a treaty:
Art 7(1)(a)(b) VCLT: a person with full powers or someone considered
to represent the state
Art 7(2): by virtue of function considered to represent the state
a. Heads of state, heads of government and MFA
b. Heads of diplomatic missions
c. Representatives accredited for the purposes of adopting the text
of a treaty
How do states consent to a treaty:
1. Signature (art 12/14 VCLT)
2. Ratification (art 14/16 VCLT)
, A depositary= impartial custodian of the authenticated text, and central
administration of the treaty
Art 76(1) VCLT: the depositary may be one or more states an
international organization or the chief administrative officer of the
organization
Entry into force:
Art 24(1) VCLT: a treaty enters into force in such manner and upon
such date as it may provide or as the negotiating states may agree
Temporal conditions: after what time?
Material conditions: when which conditions are fulfilled?
Mix and match
Obligations prior to entry into force:
Article 18 VCLT: state is obliged to refrain from acts which would
defeat the object and purpose of the treaty when: it has signed
subject to ratification, until it has made its intention clear not to
become a party to a treaty; or
Pending the treaty’s entry into force
How to determine object and purpose?
When and where does a treaty apply:
Pacta sunt servanda (art 26 VCLT): every treaty in force is binding
upon the parties to it and must be performed by them in good faith
Art 28 VCLT: presumption of no retroactive application
What if multiple treaties cover the same subject:
Art 32(2) VCLT: may be specified in treaty
Art 30(3) VCLT: later treaty between the same parties prevails (lex
posterior)
More specific norm prevails (lex specialis)
Treaty interpretation:
1. Textual
2. Historical
3. Teleological
What is a reservation?
Art 21(d) VCLT: a unilateral statement, however phrased or named, made
by a state, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that state
Are reservations allowed?
Art 19 VCLT: yes, unless
a. The reservation is prohibited by the treaty
b. The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
c. The reservation is incompatible with the object and purpose of the
treaty
Week 1: the foundations and structure of international law
Modern international law:
Born in the 17th century (1648)
The peace of Westphalia
Positivsm vs natural law: wich one prevailed
The emerge of formal international institutional: Int Telegraph Union
and Universal Postal Union
From 1945: the development from international law the importance of
regulation
9/11: what if a group of individuals affect the safety of the state and the
citizens
National and international law:
Domestic law:
Regulates the relation between the states and the Nationals
International law:
The law between different states and their citizens.
Regulation between national and international law:
Three different legal systems:
1. Monism: international law directly applies to national law
2. Dualism: two different legal systems, the international law needs to
be adopted into de national law, before it has effect.
3. Pluralism: relationship between the two systems is more complex
and diverse. Some laws work directly and some need to be
transferred
Coexistence: states can only exist if they can coexist, regulating issues
makes this possible for example the regulating of force.
The most important are the human rights.
Cooperation: you don’t have to corporate with the other states, but if you
do, it will be in your best interest. Cooperation can be a move to
coexistence.
Sovereignty: states have supreme power over their territory and may not
be subject to the jurisdiction of other states. Each state has one formal
vote, which counts equally.
Consent: states must consent to be bound by international rules.
Reflected in the fabric of international law: sources, jurisdiction,
immunities
International law beyond sovereignty and consent:
Justice
, International community
Value based legal order
Critique on international law:
Cannot be enforce
States will act in their best interests regardless of the rules
Just a collection of principles and values
“Almost all nations observe almost all principles of international law and
almost all of their obligations almost all of the time” Louis Henkin
Why do states comply with international law?
The desire for order and predictability over chaos
Consent and obedience: sovereign equality of states
Legitimacy: credibility, reputation
Enforcement mechanisms
Non state actors: actors in the international law, that aren’t states but do
have rights. For example, cooperation’s or organisations.
Week 2: the sources of international law
Article 38 ICJ Statue (the sources of international law):
a. International conventions (general or particular)
b. International custom, as evidence of a general practice accepted as
law
c. The general principles of law recognized by civilized nations
d. Judicial decisions and the teachings of the most highly qualified
publicists, as subsidiary means for the determination of rules of law
The definition of treaties:
Vienna Convention of the Law of Treaties (1969):
Leading instrument on the law of treaties
Applicable only to treaties concluded after entry into force of VCLT
But: reflects custom
Complementary, not full harmonization
Who can adopt a treaty:
Art 7(1)(a)(b) VCLT: a person with full powers or someone considered
to represent the state
Art 7(2): by virtue of function considered to represent the state
a. Heads of state, heads of government and MFA
b. Heads of diplomatic missions
c. Representatives accredited for the purposes of adopting the text
of a treaty
How do states consent to a treaty:
1. Signature (art 12/14 VCLT)
2. Ratification (art 14/16 VCLT)
, A depositary= impartial custodian of the authenticated text, and central
administration of the treaty
Art 76(1) VCLT: the depositary may be one or more states an
international organization or the chief administrative officer of the
organization
Entry into force:
Art 24(1) VCLT: a treaty enters into force in such manner and upon
such date as it may provide or as the negotiating states may agree
Temporal conditions: after what time?
Material conditions: when which conditions are fulfilled?
Mix and match
Obligations prior to entry into force:
Article 18 VCLT: state is obliged to refrain from acts which would
defeat the object and purpose of the treaty when: it has signed
subject to ratification, until it has made its intention clear not to
become a party to a treaty; or
Pending the treaty’s entry into force
How to determine object and purpose?
When and where does a treaty apply:
Pacta sunt servanda (art 26 VCLT): every treaty in force is binding
upon the parties to it and must be performed by them in good faith
Art 28 VCLT: presumption of no retroactive application
What if multiple treaties cover the same subject:
Art 32(2) VCLT: may be specified in treaty
Art 30(3) VCLT: later treaty between the same parties prevails (lex
posterior)
More specific norm prevails (lex specialis)
Treaty interpretation:
1. Textual
2. Historical
3. Teleological
What is a reservation?
Art 21(d) VCLT: a unilateral statement, however phrased or named, made
by a state, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that state
Are reservations allowed?
Art 19 VCLT: yes, unless
a. The reservation is prohibited by the treaty
b. The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
c. The reservation is incompatible with the object and purpose of the
treaty
