HC + WC 1 Flashcards
What is international law?
The totality of legal rules concerning the relations amongst States, international organisations and other subject of international law, including the rights and duties of individuals that are relevant to the relevant to the international community
Characteristics international law
- Sovereign equality of States (art. 2 UN Charter), Treaty of Westphalia
- Relatively little organisation (e.g. no universal executive, parliament, court or police)
- Legal practice (consent) matters for understanding the law.
- Universal character in tension with legal cultural differences.
- Tension between law (not politically innocent) and politics
- Move from co-existence to cooperation
Sovereign equality of States (art. 2 UN Charter), Treaty of Westphalia
–> Idea comes from Europe. 1648.
- We can live in peace, avoid war, if states are the main actors and each state is sovereign and equal.
Why is it so important? Example: NL can’t decide the laws for Canada.
States can do what they want, unless there is (for example) an article from a treaty that prohibits that.
- Universal character in tension with legal cultural differences.
The idea that there are shared values. The reality: each state own rules and culture, creating a tension between the legal culture of states.
- Tension between law (not politically innocent) and politics
International is created by states and states represent their own interest.
example: international law made slavery possible but also the abolition of slavery.
Actors
Any individual, body or entity that has an impact on international relations.
Subjects
An individual, body or entity possessing international rights and duties. Like: the right of freedom of expressions evrm
Capabilities of subjects varies
Subjects are not identical in their nature, their nature depends upon the needs of the community.
States have:
They have: Full international legal personality
–> they decide who becomes a subject of international law
Partial legal personality: international organisation
What is a state? (declaratory theory)
(1) Permanent population
(2) A defined territory
(3) Government; and
(4) Capacity to enter into relations with other states
Recognition (constitutive theory)
Evidence for requirements “what is a state?’
Treaty (what is it?)
Does not HAVE to be written. In theory it could be an oral treaty. But in 2025 that (almost) never happens.
Treaty could be called different names. You will not know if it’s a treaty, unless you read the text of the treaty. If the states INTENDED to create international law. Is it political or is it really international law-making?
Law-making treaties versus treaty-contract
Law-making treaties
Achieving a goal together (like terrorism). All states will one day ratify that treaty. It will bind all states.
Treat-contract
An issue that’s only valuable to specific states. Like a river.
Where to find treaties?
UN treaty section
untreatey.org
Why are treaties so valuable and important to international lawyers?
Treaty is a binding legal obligation. Best expression of State’s consent.
Customary law
1) Opinio juris: belief of States that an international legal right or obligation exists.
–> Leader of the country. What are they saying? What are politicians saying? Diplomats? What do states think that are legal obligations that they have.
2) State practice: consistent with that right or obligation. Are they using international law?
- Widespread and virtually inform practice. Looking if an international law exists among all of the states.
- Time: may be for a longer period but also instant customs
- Particularly specially affected States. If you wanna know what the rules are of the sea. You’re gonna look at countries that have lots of territory on sea.
Consequence? Binding upon all States
Unless: persistent objector (emerging custom).
Exception: jus cogens/peremptory norm (e.g. slavery). Handful of rules that are known as peremptory norms. States agree that these are rules that none of them are allowed to object against.
Why rely on custom
1) Treaties do not cover all problems
2) Not every state has ratified every treaty
Treaties and customs
- They can say the exact same thing or different things about an issue
Where possible , interpreting treaties in harmony with custom. States are rational actors.
General principles of law
Legal principles existing in national legal systems that are so generally recognised that their existence under international law must be assumes (pacta sunt servanda).
- Useful for deciding cases that could not otherwise be decided.
Relationship between sources
Customary law prohibits torture. 2 countries sign a treaty agreeing
Lex posterior
The law created later, prevails
