Summary Essential guide to Hernandez "International Law"
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Public International Law
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Universiteit Leiden (UL)
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International Law
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College aantekeningen Publiek Recht II: Internationaal Recht International Law, ISBN: 9780198748830
College aantekeningen Publiek Recht II: Internationaal Recht International Law, ISBN: 9780198748830
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Notes: Gleider Hernández (2019) ‘International Law’, Oxford University Press
CH1: The history and nature of international law
HISTORICAL OVERVIEW
Understood starting point for modern international law in Europe: 1648 Peace of
Westphalia
- The Peace of Westphalia is the collective name for several treaties signed in Münster
and Osnabrück to end the religious wars which raged in Europe.
- Represented a definitive rejection of the secular power of the Pope over the internal
affairs of other states all states to be equal and sovereign, under no higher power.
- Characterization of the State as an organized territorial entity capable of
guaranteeing its commitments
Hugo de Groot (Grotius) established a tradition of natural law scholarship based in reason,
not religion, as well as the concept of the freedom of the seas. Grotius portrayed
international law as a combination of two distinct bodies: jus gentium and jus naturale.
- Jus gentium: rules which are a pure human creation, subject to change from time to
time and from place to place
- Jus naturale: the laws which exist in nature, and so are universal and eternal, to be
discovered through the full use of human reasoning.
- In: Grotius, On the Law of War and Peace.
Emmerich de Vattel followed Grotian thought in his Le droit des gens: the first international
law textbook. He entrenched the doctrine of the equality of the states and through making a
distinction between ‘natural law’ (‘laws of conscience’) and ‘positive law’ (‘laws of action’),
he shifted the debate in international law towards positive law by arguing only the laws of
action were relevant. An increasing reliance on human reason during the Enlightenment
strengthened the concept of natural rights in the 17 th and 18th century. Eventually the belief
in the laws of nature was abandoned and replaced by the emergence of positivism (term
coined by Auguste Comte). Positivists contend that only those laws that are agreed on by
states are valid (moral considerations are irrelevant for the validity of law).
1815 saw the Congress of Vienna which ended the Napoleonic Wars and lead to the
creation of the Concert of Europe, which was an informal structure of the major European
states who convened to preserve peace.
- Notion that certain States carry certain responsibilities premised on claims of
cultural / material / legal superiority still persists in international law (P5 SC UN).
- Entrenched the idea that certain values (peace) need protecting through
international law.
The emergence of positivism strongly shaped international law doctrine: the sovereign
State became central in international law. Canonical principles which follow:
- Principle of non-interference
- Sovereign equality
- Entitlement for state to preserve itself or ensure its survival.
,Positivism in the 19th century led to the creation of the first international organisations and
the first engagement in multilateral treaties to arrange common concerns. This led to the
1899 and 1907 Hague Peace Conferences, which generated the 13 Hague Conventions on
the conduct of war and the establishment of the Permanent Court of Arbitration.
International law & colonialism:
- International law was used as a tool to resist European claims to colonialism
- But international law also facilitated colonialism and slave trade by providing the
legal vocabulary and concepts.
o Terra nullius principle territories with a non-Christian were considered
uninhabited.
o Grotius’ freedom of the high seas on the one hand decolonized the seas but
also facilitated colonial expansion and slave trafficking.
The 1884 Congress of Berlin led to the 1885 Berlin Act which prohibited slavery and
protected the freedom of trade and navigation. It is infamous for dividing up the African
continent amongst European nations on the principle of terra nullius whilst the leaders of
the African population not being present.
The twentieth century consolidated international law and led to reflection on its social
foundations and normative consequences.
- WWI lead to the enlargement of international law to include not only European
nations but also the other parts of the world, especially the U.S.
- The Covenant of the League of Nations was signed to “organize the international life
of the family of nations” (Art. 1). The League of Nations bridges the informal
structure of the Concert of Europe (Congress of Vienna) to the United Nations: it had
a broad mandate, was open to universal membership, but was dominated by a
number of powerful nations and embedded the idea that powerful States have a
special role as guardians. It collapsed after its failure to prevent WWII.
- The League of Nations established the Permanent Court of International Justice in
The Hague in 1922. Its art. 38 of the PCIJ Statute would become the cornerstone of
international legal sources.
- 1928 Kellogg-Briant Pact: parties foreswore resort to war as a national policy and
thereby lead to the prohibition of aggressive war as later embodied in the UN
Charter.
- WWII lead to the signing of the Charter of the United Nations in 1945. Like the
League, the aim of the UN was to preserve international peace and security, but it
went further than the aims of the League: promote respect for the equal rights and
self-determination of peoples and establish a ‘universal peace’, called for
cooperation on economic, social, cultural and humanitarian questions and promoted
respect for human rights. UN Charter’s 3 pillars:
o 1) Peace and security art 2(4) UN Ch prohibition of use of force
o 2) international cooperation UN as umbrella organization for the
establishment of “Bretton Woods” financial institutions (IMF, World Bank).
, o 3) development: newly independent states (Third World) challenged
Eurocentric status quo in GA in groups such as “Group of 77” and the “Non-
Aligned Movement” international law was used to improve their situation.
- Cold War: paralysis in international law as UN was in deadlock due to the SC veto
between “First World” (i.e. Western countries, capitalist countries) and “Second
World” (Socialist countries).
- Post-1945: sovereign State remained central subject & growth in topics of
international law, such as space, environment, human rights, oceans.
- Since 1989: revitalization of international law due to more active SC, establishment
WTO, active ICJ, establishment international criminal institutions.
Conclusion historical overview: international law did not evolve in a vacuum but is a
normative system which evolved over centuries to address new challenged and the needs
of states. Changes were incremental: sedimentation new features gradually deposited
over the system’s foundations.
FOUNDATIONAL CONCEPTS OF THE CURRENT INTERNATIONAL LEGAL ORDER
Foundational concepts that underpin the current international legal order:
- Sovereign equality of states: recognized in art 2(1) UN Ch 1) equality: all states
enjoy equal footing so consequently enjoy the same rights and obligations and 2)
sovereignty, both outward-facing (principle of non-interference) and inside-facing
(exclusive power to wield legal authority),
- Decentralised authority: states are the main actors, leading to a horizontal legal
order with no superior authority.
- Basis of obligation: although states enjoy freedom of action due to their sovereignty,
they may be bound to obligations based on their consent to be bound. The principle
of reprocity implies that states consent to limit their freedom in understanding that
other states act likewise art 2(2) UN Ch and art 26 VCLT, principle of good faith
(pacta sunt servanda).
CONTEMPORARY DEBATES IN INTERNATIONAL LAW
Criticisms of international law:
- Eurocentric: international law was developed originally as an extension of the
European State-system.
- Concerns universality of public international law: based on the negative
consequences of international law for those not included in its creation and
discredit the myth of the politically neutrality of international law.
o Post-colonial approaches (Third World Approaches to International Law):
colonial legacy of international law
o Feminist critique: international law encompasses engendered hierarchies
and oppression.
o Marxist perspectives in international law: challenge the capitalist
foundations
, - ‘Realist’ / ‘Constructivist’ / ‘Institutionalist’ / ‘network theories’ approaches state
that international law merely captures patterns of behaviour rather than
enumerates rules.
- Global collective concerns: changing global political and economic structures
(globalization), protection of global environment, terrorist attacks, cyber security.
Can international law fit the task of tackling these global challenges?
CH 4: INTERNATIONAL LAW AND MUNICIPAL LAW
International law deals primarily with inter-State relations. Municipal law (national law)
deals with the relations between the State and the individual and the relations between
individuals. Yet there are many overlapping issues. The international legal order asserts its
supremacy over the municipal legal order yet leaves the question of how this is arranged to
the municipal legal order.
Two conflicting doctrines on the relationship between the international legal order and the
municipal legal order: dualism & monism.
- Dualism: emphasizes the autonomy and distinct nature of municipal legal orders.
International law only applies to the extent that the sovereign state has accepted its
application; municipal law determines the resolution of a conflict of rules
international legal orders and municipal legal orders are distinctly separate.
Concretely: treaty obligations needs to be transformed into municipal law by
judicial recognition or statutory incorporation for it to apply in their municipal legal
order, with the exception of customary international law.
o Where? Most common law jurisdictions.
- Monism: conceives the relationship between international law and municipal law as
coherent and unified. International law is directly applied in national legal orders,
without any transformation.
o Hans Kelsen: monism is a logical necessity, as international and municipal
legal orders are based on a Grundnorm.
o Where? Most civil law jurisdictions.
Hans Kelsen contended there cannot be any middle ground between monism and dualism:
tertium non datur (no possible third way). Yet Charles Rousseau and Gerald Fitzmaurice
have invented a third way: starting from a dualist perspective, where incompatabilities
exist between obligations of international and municipal law, the rules of State
responsibility should resolve the conflict. Such an approach was adopted by the ICJ in
Nottebohm (Liechtenstein v. Germany) 1955.
CHIEF PRINCIPLES OF INTERNATIONAL LAW REGARDING THE RELATIONSHIP BETWEEN
INTERNATIONAL AND MUNICIPAL LEGAL ORDERS.
- A State may not invoke provisions of its own municipal law to justify breaches of
international law from the Alabama Claims arbitration, upheld by PCIJ and ICJ
and now codified in art. 3 of the ILC Articles on State Responsibility and art. 27 of
the VCLT. An exception is articulated in art. 46 VCLT, governed by the interpretation
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