Summary Class notes - International Law

- International Law
- Jean Allain
- 2019 - 2020
- Universiteit Leiden (Universiteit Leiden, Leiden)
- Rechtsgeleerdheid
106 Flashcards & Notes
1 Students
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Summary - Class notes - International Law

  • 1551913200 Week 1: Nature of international law

  • Definition of international law
    The projection of international relations into the future
  • Who is often considered as the Grandfather of modern international law, what is wrong with this and who is also important?
    Hugo de Groot was considered the Grandfather. This is a Eurocentric view and Shaybani did what Grotius did about 800 years earlier.This is called the Third World Approach to International Law.
  • What did the Peace of Westphalia (1648) established in European Public Law?
    The system of 'states' emerge. There is a shift from sovereignty (individual) to a territorial unit. Sovereignty is no longer in the individual (The Prince) but in an entity: the State. Sovereignty means that you are on top of the food chain.
  • There is something called 'the myth of the social contract', which Max Weber gives as a definition of a State.
    We give up some of our liberty to security. This is what Max Weber goves as the definition of a State: a State is a monopoly of a legitimate use of violence.
  • What is the fundamentally different way in how international law works in comparison to domestic law?
    Domestic law is based on coercion, and international law is based on consent. In international law there is a lack of a leviathan.
  • What is the nature of international law and what is the reason that this does work at an international level compared to the domestic level?

    Anarchy. There is a lack of order. Chaos.
    At a domestic level anarchy would mean the devastation of the State, but States are governed by a anarchical system. You need to find a system that works for all states, that are each on the top of their food chain.
  • What are the 3 foundation stones of international law and on which two pillars is this build?
    1. Subjects of international law
    2. Sources of international law
    3. State responsibility

    1. Limitations on the use of force
    2. Peaceful settlement of disputes
  • Give the facts of the Island of Palmas Case, the arguments of both the US and the Netherlands and the conclusion?

    Both the states claimed sovereignty over the island. There is no reference made to the local inhabitants because they are seen as 'uncivilized' and the law only applies to civilized nations.

    Argument of the US: claims sovereignty over the island derived from Spain by way of cession. US is the successor state of Spain and Spain has title of discovery.

    Argument of NL: From 1677 onwards there were different manifestations of contact and control. They held effective occupation and this was never really challenged. By not saying anything, it was accepted.

    Conclusion: There is no prove of discovery of the island by Spain. The Netherlands had proof because of the contracts by the East Indian Company. If Spain believed the island was theirs they should have challenged the Dutch. Failing to assort your authority, is failing over time to hold your authority.
  • 1552518000 Week 2: Sovereignty and the State

  • What is the primary subject of international law and which other subjects gain standing through this filter?

    The State
    - Inter-Governmental organizations
    -The individual
    - Multinational corporations
  • What is the reason that sovereign states will impose limits on itself? Explain this with the example of human rights.

    The essence is in mutual gain. The State consents.
    Human rights are a means by which a State can protect itself from itself. An individual will not be willing to give up their rights to the State if that State is mistreating the individual.

  • Through which two principles emerges the communal thread of international law?

    1. Jus cogens: a norm for which there can never be a justification for its breach.
    2. Obligations erga omnes:

    The international community has legal interests beyond those of any State.
  • What is the weakness of international law?
    Every State for itself. There is no space for the common good. International law is good in addressing States but not in addressing common goods or problems.
  • What is the reason that diplomats are governed by international law (the Vienna Convention on Diplomatic Relations) and what do they possess?

    Those entities which are subject to international law are not subject to domestic law. Diplomat is representative of the State. State is subject of international law.

    They possess international legal personality.
  • What are the four constitutive elements of the State in article 1 of the Montevideo Convention?

    Objective elements:
    1. Permanent population
    2. Defined territory

    Subjective elements:
    1. Effective control; government
    2. Recognition: Capacity to enter into relations with other States
  • Explain the appropriation of the seas by states. Mention the zones and the areas beyond appropriation.

    Four zones:
    1. Territorial sea (12 nm from baseline): full sovereignty.
    2. Contiguous zone (24 nmiles): giving coastal State rights in regard to prevent infringement of its customes, fiscal, immigration and sanitary laws and regulations.
    3. Exclusive economic zone (200 nmiles): FISH
    4. High Sea with the Area (deep sea bed)

    Continental shelf: sovereign rights of all coastal States to exploit the resources of the continental shelf, its soil and subsoil. It is about the resources: oil and minerals.

    Areas beyond individual State appropriation:
    1. The Area of the High Seas: part of the seabed beyond the conventional continental shelf which is considered The Common Heritage of Mankind.
    2. Antarctica: issues of sovereignty and jurisdiction have been frozen for the indefinite duration of the 1959 Antarctica Treaty
    3. International Canals
    4. Space Law: sovereignty stops somewhere between 50-100 miles above State territory
  • What were the dominant doctrines to justify the European expansion from 16th to the 20th centuries?
    • Discovery

    - Jurists were sceptical of this doctrine.
    • Conquest

    - Was a just cause for war, only few writers argue that the European States presented any of those causes.
    • Cession

    • Occupation

    - Most important justification.
    - Principle whereby anthing that belong to nobody became, by natural reason, the property of the first person to take it.

  • What is argued that is the main motivation for the development and codification of jus cogens norms and obligations erga omnes?
    The decolonization process and emergence of Newly Independent States. They question the nature of international law and whether they should be bound by it.
  • Name the 4 forms of sovereignty, and their shortcomings, over territory mentioned in the article for week 2.
    1. Occupation and acquiescence (based on terra nullius; needs to be effective) 
    2. Discovery (to perfect title settle land for reasonable period)
    3. Accretion (artificial is possible to extend not harm other States' rights)
    4. Cession and annexation (now illegal, but intertemporal law)
  • Which principles governs the international canals, that is beyond individual State appropriation?
    1. Open to all without discrimination
    2. Open at all times
    3. Innocent passage
    4. Limited environmental and safety protection for the Canal State
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