Summary International Law

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Summary - International Law

  • 1 Introduction (week 1)

  • Lecture 1: Introduction


    It is the European interactions that came to dominate the foundations of today’s modern international law for better or for worse; partly because of European power and its ability through colonization to conquer.

    After 30 years war, the Peace of Westphalia came into existence which represented a rejection of the secular power of the Pope over the internal affairs of other States. European States were now considered as equal and sovereign in their relations with one another, without external interference unless consent was expressly given, usually by treaty.

    Today: quite exciting time for international law; different leadership in the US, different position of China, Russia. International law became more important than ever before.

    Natural law theories: presupposes a moral or ethical basis that is higher than the law created by human beings.
    Positivist law theories: suggests that law is an autonomous system of which there is no higher made source than the law that is made by human kind.
  • 1. What is international law?
    There are three ways to define international law. Most important one is:

    (1) Defined by subjects (see also Hernandez):
    International law governs the relations, supporting to think about law as relational. Law is always about relations between individuals, states, corporations, organizations, freedoms. If you read Hernandez it is clear that historically from the Peace of Westphalia international law has been made by states and for states.

    But what is the position of individuals? In terms of the subjects, it is primarily states and organizations. To a very limited extend, individuals can also have obligations. So there is a relatively set of rights and duties for individuals. In a more idealistic frame, in the end, international law serves an interest for human beings. But if you look at it from a somewhat more positivist approach, international law is really about governing the relations between states and organizations.

    The breach of an international obligation has legal consequences (responsibility) for the wrongdoing state. The breach has two consequences:
    1. Provide reparation to the injured party
    2. The injured state has the right to take countermeasures against the wrongdoing state
  • (2) Defined by sources:
    What is law? What makes a rule a law? How do we determine whether something is a legal document? >> One answer is enforcement, another one is consent, and it has to come from a recognized source. This is the key feature of positivism in law. Positivism as a theory holds that law is separated from no law by a limited set of sources. Important to understand as a lawyer is how the source works and what makes a rule legal. The three sources are (art. 38 ICJ Statute): treaties, customary international law, general principles of law. Subsidiary sources are: decisions of the ICJ, decisions of national courts and writings of academics.

    Final part of the first chapter Hernandez he speaks about fundamental principles. He mentions there the concept of decentralized authority. This is a fundamental characteristic feature in international law because unlike domestic legal orders, there is no central authority. With no legislature that stands supreme over States, it therefore remains a horizontal legal order with no superior authority. This means that States must come together to create new legal obligations, such as through treaties or custom.
  • (3) Defined by substance:
    Power is part of international law. We tend to think of law as a constraint on power (this is a domestically approach) (the rule of law) (the law controls power and it protects the individuals, the weak against the strong). This also counts to some extend internationally. So there is a notion to use law to control power. At the same time, law is an instrument of power. Power can use the law, shape the law, to serve their purposes.

    The history of international law largely is the history of European driven international law.

    You can say, international law is a system that defines the international legal order. Within the international legal order you have separate international organizations; United Nations, World Trade Organization, World Health Organization and many other organizations. These are the actors in international law, but they also create their own separate legal order. And resolutions are in principle only binding within that legal order. So decisions of an organization are only law within their own legal order.

    So international law is an argumentative practice, because if you talk about any issue, for example the trade war between the US and China, there are a bunch of arguments you can use in explaining why the US should or should not impose threats on China. But the trick is to identify structured legal arguments that are persuasive to compel. First good argument is to start by the sources, is something a legal argument at all? Is it law? How do you interpret the text? Historically, political interpretation. What arguments help you to win.
  • 2. Three ways of thinking about international law
    These are three different angles that you can use for different perspectives. Also important: what type of lawyer are you, how do you identify yourself? Gedurende de master ga je jezelf steeds beter leren kennen, vormen en identificeren.

    (1) International law as POSITIVE rules (what is allowed/not allowed): questions asked
    • Does the Refugee Convention oblige states to admit economic migrants? What does the Refugee Convention say, does it protect economic migrants or only people who flee prosecution from their Home State?
    • Does the UN Charter allow states to intervene in Yemen? Self-defence? Is there a right to intervention? Is there a right to off throw the government, to protect the government? These are all technical legal questions. And you can use your argument in sources to answer these questions.
    • Does the WTO agreement allow a state to ban meat in produced in ways that conflict with its conception of animal welfare?
    > Lawyer asks himself: what does the positive international law has to say on this? But these are all narrow questions.

    Critique: ‘Arguments derived from formal sources are often powerful in front of professional audiences but fail to carry any meaningful project of a better world’ (Koskenniemi)

    Law in the books is not necessarily law in action.

  • (2) International law as a process (you have to look at what is actually happening in practice, what states do when they accept certain constrains, what interests are served by a particular rule): questions asked
    • Do states base their decisions relation to intervention in Yemen on the formal restrictions in the UN Charter? So here you look at the interests of different actors, how they use international law. But is this law? The boundaries are not so sharp. This perspective is not something outside of the law. Brief explanation back to the sources: We said two important sources are treaties and custom. It is relevant to know that both have to be incorporated in what is going on in actual practice. You want to understand what does it really mean to prohibit the use of force; we have to look at the practice of states to understand what it says.
    • Does international law constrain the foreign policy of President Trump?
    • Can international law play an effective role in curbing climate change? How can international law help to solve climate change?

    Michael Reisman: law is not just a set of rules, law is an ongoing process of decision making by relevant actors.

    Critique: Blending law with process and politics ‘may undermine normative character of international law, and become a mere apology of ‘what power has been able to achieve in society’ (Koskenniemi). So you want to be more normative, more utopian, you want to disconnect from power. But if you’re too utopian, the law because irrelevant because it is not supported by actors. So the trick is to find that middle way. One way of reading judgments of the ICJ is to find that middle way.
  • (3) International law as justice (almost as an idealistic enterprise. If you read Hernandez there is a section on natural law; law is a God given): questions asked:
    • Do justice considerations provide a right to intervene and override sovereignty?
    • Should states have the right to exclude others from their territory?
    But be aware, these are tricky questions. “Justice”, “fairness”. Who’s fairness?

    International law as a normative project
    ‘International lawyers: “… see themselves and their work favouring international law and institutions in a way ..

    Critique: Ideas such as justice, self-determination, human rights, or peace are prone to much controversy: whose justice, which rights, whose peace, and under what conditions?

    They are thus vulnerable to the critique of being only abstract utopias, manipulable to suit the speaker’s political purposes (Koskenniemi).
  • EU document next General Assembly (see optional material week 1):
    EU wanted to address a document on the position of China and Russia in international law. And a document on the impact on the Trump administration in international law. If you read these documents back to back. So the European position, the Russian/Chinese position, and the United States’ position, you see differences in what these states want to accomplish with international law. And this, international law through justice, agenda, to a large extend has become a European agenda in international law.

    So interesting point to make what Hernandez makes on European law:
    It is the European interactions that came to dominate the foundations of today's modern international law for better or for worse; partly because of European power and its ability through colonization to conquer. After WW II, Europe had to reposition itself: from a colony entity to States with an idealistic liberal perspective of the international legal order.
  • 3. The universality of international law
    Is international law universal? Yes, but not in terms of the substantive law, but in terms of the system in which it operates. International law can be seen as a common language to regulate relations, to protect the interests of states. You need common rules. International law / agreements allows states to negotiate and develop rules on for instance climate change, migrants, trade and to find political consensus and give it a legal shape.
    • The European origins
    • Universality post WWII: the United Nations
    • Challenges

    4. Most important principles international law
    • Fragmentation. International law as a whole is a complex system of particular treaties that are binding between parties that consent.
    • A pluralistic understanding of international law
    • Different ideological and political perspectives
    • Regionalism
  • Questions Chapter 1: The History and Nature of International Law

    1. Many theorists maintained that international law is not law and not a full-fledged legal system. Analyse this claim critically.

    Much positivist theory sought to situate international law as distinct empirical discipline, not tainted by contested morals and ethics, during the Enlightenment. It is true that there are some features of international law that are often criticized as problematic. Chief amongst these remain the absence of a centralised legislature or law-making authority and the absence of compulsory enforcement. Despite criticism, international law is arguably a coherent system capable of maintaining certain fundamental values, in particular, the sovereignty and independence of States.
  • 2. Whatever developments have taken place in recent years, international law is and always will be a system rooted in the consent of States. Discuss.
    The classical view of international law is that it is a system rooted exclusively in the consent of States. Consent entails that only those obligations to which a State has agreed, can be binding upon it. In this regard, it is useful to highlight the principle of reciprocity on which consent is based: States consent to limit their freedom of action in order to induce other States also to limit their own. Consent and reciprocity are accompanied by the requirement, now reflected in Art. 2(2) UN Charter, that obligations assumed by States be performed in good faith.

    Anne Peters suggest that international law has undergone a process of 'humanisation' in which the individual is now paramount.

    What's more, the processes of law-formation often do not require consent, but merely acquiescence or tacit acceptance. Silence can be enough to have new customary norms that bind a State that has not given its express consent. Jus cogens and peremptory norms even go further: there is no argument that a persistent objector to a peremptory norm is exempt from it.
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