Chapter 1 Flashcards
Nature of international law
Define international law
System that regulates the interrelationship of sovereign states and their rights and duties to one another. And other actors; like international relationship and individuals with rights/ obligations in it
What type of system is international law?
A decentralized legal system where it is primarily up to legal subjects themselves to create, interpret and enforce the law.
Pre- Greek civilisations
before 2100 B.C. Treaty between Lagash and Umma of Mesopotamia settlement of disputes through arbitration, solemn oath for observance)
Ancient Greek and Roman times
origin of certain principles and customs e.g. treatment of foreigners, arbitration for settling disputes, treaties on commerce, peace agreements.
Early modern international law, middle ages 15th and 16th centuries
The pope
Influence over a lot of nobles. But there was a transnational network between knights and merchants that often people had more allegiance to than fellow ‘nationals’
Early modern international law, middle ages 15th and 16th centuries
Law theories
Domination of natural law theories (jus naturale)
Also a law of people/ nations, that was derived from natural law = jus gentium.
Early modern international law, middle ages 15th and 16th centuries
How did the international law structure look like?
Legal obligations and contract for everyday relationshions. This led to agreements on issues like treatment of merchants, diplomatic envoys, conduct of war etc.
Early modern international law, middle ages 15th and 16th centuries
Dawn of colonialism
Early confrontations Spanish explorers and natibe americans. Also an acquisition of territories, sovereignty, freedom of sea’s etc.
Early modern international law, middle ages 15th and 16th centuries
Changes in the 17th and 18th century
Beginning of modern international legal system. Better distinction between jus naturale and jus gentium; international law from jus gentium
Many leading figures like Hugo Grotius
Peace of westphalia (1648)
Birth of the international state system
Peace treaty thirty years war: peace of Munster, Treates of munster and Osnabruck.
Make the state the primary source of authority and increasing a sense of allegiance among citizens in own states.
Jean Bodin; before peace of westphalia
Wrote something simular. Wrote a book in 1576. Theory that the sovereign should only answer to God. Wanted more clarity and stop wars of religion and authority.
Other theories where devolped by Hobbes and Locke.
The 19th century and the era of positivism
Consensual theory: states only bound by international obligation when consent = positivism; there is no universal legal system.
Why did positivism gain much of its appeal?
Formal institutions like:
1865 telegraph union
1874 universal postal union
First multilateral treaties regulating armed conflict
Declaration of Paris
Declaration of St. Petersburg
Two hague conferences in 1899 and 1907 = led to the adoption of conventions of conduct of war and permanent court of arbritation
Latter half of century regarding colonialism + conferences regarding that
Peak colonialism in Asia and Africa. 1884-1885 Berlin conference; criteria for partition of Africa (=scramble of africa), in 1914; 90 percent of africa was under european control
Interwar period
League of nations 1919; maintaining world peace. No prohibitions, just some mechanisms that countries had to follow.
Did prohibit war in the Paris treaty 1928
Permanent court of international justice (PCIJ), forerunner of the current ICJ.
After ww2; UN
League of nations replaced by UN; based on Westphalian principles.Founding treaty is the Charter of United nations. Ban of the use of force and an authorizing organ: security council.
General assembly, representation for all the members.
International law commission 1946
Progressive devolpment of international law and its codification.
ICJ
Replaced the PCIJ and became more and more important
Umbrella structure of the UN
For lots of important international organizations. IMF, world bank, GATT (all created in 1944).
NATO
Created in 1949 to counter the Soviet threat and remains of vital importance.
European Coal and Steel commuty and Treaty of Rome +EU.
Common market. Treaty of Rme in 1957, same states, created the European Economic Community (EEC) with an economic market and customs union. This devolped into a single market in 1993. EU devolped to 25 member by 2004 and currently has 28.
International organizations made outside of Europe
For the mostpart the post WW2 devolpment where set up by western values, but more non- western organizations have began playing a bigger role in international rules. Because of interstate rivalry, example: BRICS
Structure of international law
International is determined by the inadequacy of national law and a dependecy of international law. A matter may become an issue for international law due to its context or form. Context is governed by the international law of coexistence formed by the international law of cooperation
International law of coeixistence
Legal answers that are inherently of interest to one or more state and required to seperate the powers of sovereign states and thereby uphold peaceful coexistence. Mainly concerned with how sovereign states interact with/ between eachother (=horizontal).
International law of cooperation
Legal answers to issues that have been made internationally through the adoption of a treaty. After ww2, international law became concerned with how sovereign authority was exercised within states. Optional with a consensual ccharacter.
Basis of international obligation
The existence of plurality of sovereign states justifies the binding character of international law. Peaceful coexistence requires basis rules about how states may behave in mutual relations. States may disagree ith the content, but they never question that they are bound.
Relationship between international and national law
International assers its supremacy over national law. Up to each state how it impliments this.
Monism
International and national law are from a single legal order or a set of mutually intwined legal orders presumed to be coherent. Can be applied directly in the national system.
Dualism
International and national law are two seperate legal systems that operate independently. Either incorporated into national law by a shorts statute or needs a more thorough reformulation and interpretation in a new law or an amendment to existing legislation
Plurism
A reltionship between the two systems that is more complex and diverse. In practice neither monism or dualism can explain the many ways international law is applied by national legislatures and courts
In practice
All national courts will try to avoid a breach of international obligation and therefore try to interpret national legislation in accordance with international obligation.
Enforcement of international law
Complaint mechanisms, most notable: ICJ, interstate complains
+ other commitees within the UN.
Policing is harder. There are criminal tribunals and under artcle 7 of the Treaty of European Union, EU states can sanction members.
Self-help. A state can suspend its own performance of a treaty, there are countermeasures, retorsion: example: halting foreign aid or suspending trade.
Why do states often follow international law?
Desire for order and predictability over chaos, consent and obedience, legitimacy, enforcement mechanisms: retorsions (diplomatic) contract: tit for tat
Critiques of international law
- Consensual character of treaties. Makes progress on issues of global concern hard to achieve
- Some argue that the current international legal system helps sustain and perpetuate structural injustices. Little care shown to the welfare of people from third world countries.
- Current international law helps sustain structural injustices and inequalities against women. System is dominated by men
Original purpose of international law
Less about justice, more about order, but this should not be an excuse for not trying to improve.
Two key notions that explain how international law works
Sovereignty and consent
