Into And History Flashcards
The origins of international law
early forms of international cooperation
- Islamic power structures and the rest of the world
- power of the Catholic Church in Christian states ➞ the pope could make rules for all Catholic states
The peace of Westphalia 1648
- a piece treaty between a number of states
- beginning of the current system of which we have today ➞ they rejected the powers of the pope and instead there came the equal sovereignty of states
The ‘fathers’ of international law
- statesmen ➞ politicians, diplomats, lawyers etc. They looked at what they understood about international law. These men wrote about how they thought international law worked and what it was (think of Grotius)
Development and spread of Westphalian international law
➞ it was a European thing in the beginning, how did it spread?
European influence as they colonized people: colonialism and the spread of the European state based system. So basically when EU countries claimed countries or when eu countries pushed other countries to use their system
Deepening of international cooperation
- intensifying ➞ in the beginning it was pretty basic (not many rules in place), and as time goes by that changes
- first permanent international organizations: international telegraphic and postal union
- early multilateral conferences and treaties: mostly they were bilateral treaties but in the area of humanitarian law there were treaties which were multilateral
Professionalisation of international law
- now it was seen as another legal system ➞ legal science rather than just politics
International law in the 20th century
WWI and aftermath: they wanted to institutionalize international law ➞ league of nations. Before the international court of justice: permanent court of international justice
WWII and the post-war settlement: so during WWII al of the above was let go and intensified after.
- charter of the United Nations and ICJ Statue: many of the issues are dealt by the UN
- Breton words settlement 1944 ➞ start of international monetary system
- universal declaration of human rights 1948 (global recognition of human rights, but not binding)
- Geneva conventions 1945 ➞ humanizing of international states, rather than it just being about the states ➞ common interests
Cold war period: very little is able to get done because of the tensions, so a lot of the promises of the UN weren’t able to get done ➞ deadlock in the UN. Surge in treaty-making
1990s/early 2000s: end of the Cold War and we see a rise of hope again
- increased role of the ICJ ➞ hope that international law can be a tool for justice
- bigger role for UN institutions & rebirth of international criminal law
Natural law vs positivism in international law
1. Natural law (jus naturale)
- they believe that there are certain rules that just are rules of themselves ➞ they just exist
- historically it was based on religion
- national law based on reason ➞ if you logically argue that based on reason a law exists, then it does
- natural rights (modern version)
- natural law and morality
2. Positivism (just gentium)
- there is a legal process and law is everything that passes through that process
- law made by people
- law made via the law-making process ➞ rules (and it doesn’t matter if it is biased)
- law made by states (state consent)
State sovereignty and its consequences
All states are sovereign and equal
- doesn’t mean that they have equal power financially, but that regardless of their power they have full competence and legal control over what happens within their own state. All equal in the eyes of the law.
- horizontal legal order ➞ they are all on the same level
Decenstralised authority
- no international government, and no international police force.
- in some ways the UN plays the governmental role because the states agreed that it has power ➞ consent by member states
State consent
- it is the basis of obligation ➞ a state can’t be bound by something if they havent consented to it. In practice this is more complicated
- they need to give consent because no state can compose an obligation on another state (sovereignty)
- consent to the jurisdiction of the court to be judged
Law between states?
Traditional perspective = international law as the law between states
But there are different powers, what about?:
- international organizations
- multinational corportations
- NGO’s ➞ technically they don’t have power, but they have influence
- unrecognised states
- individuals ➞ first international law was made not having anything to do with individuals
Is international law actually law?
There is no police force and states have to consent, most states comply with international law most of the time. It’s just when they don’t, that the consequences are high
Is international law a legal system?
In the beginning it was just the basic rules, and now we have regulations on human rights etc and we have more and more institutions
View from domestic law: monism vs dualism
This is usually determined in the constitution of a particular state
Monism
- one unified legal order
- international law is immediately and directly applicable within the national legal order
Dualism
- separate and distinct legal orders which operate under their own rules
- international legal rules must be incorporated into international law to have effect within the domestic legal order
View from international law
You can’t use domestic law to invalidate international law
