Week 1 Flashcards
International law
- Primarily regulates …
- It relies on …
- International relations, with states as its main subjects.
- Treaties and customary law as its main sources.
Public international law
Deals with relationships between states
Private international law
Deals with relationships between private individuals
International law becomes relevant in case of conflict between state interests. This can occur in 3 ways:
TCJ
- Through treaties made by states to address issues.
- The creation of customary international law through state practice.
- The judgements of international courts that interpret treaty rules and establish customary law.
Aims of international law:
CPCC
- Creating peace and order.
- Promote set international goals
- Co-existence: based on responsibilities, rules have been made to give each other the peace, they deserve. Mutual peace between states can exist and alone can exist.
- Cooperation: aside from the peace between states, they must achieve certain goals.
Differences national law vs international law
SLFOL
National law:
1. No consent required for rules to be legally binding.
2. Trias politica.
3. Structured system.
4. Operates vertically between states and citizens.
5. Enforcement (police).
International law:
1. State consent required for rules to be legally binding.
2. Lacks trias politica (lacks centralized, legaslative or executive power).
3. Fragmented system.
4. Operates horizontally between states on an equal footing.
5. Lacks enforcement when international rules are violated (no police, but courts/tribunals, UN/EU).
The international legal system consists of different structures of rules reflecting the historical evolution of the law and the political configuration of the world. The conception of the state as a national sovereign helps to explain the role and primary purpose of international law.
2 ways in which an issue becomes of interest to more than one state define the 2 substantive structures of international law:
- International law of coexistence governs a situation: Where two or more states are likely to have a colliding interest in the substance of the issue. The matter becomes an issue for international law due to its content.
- International law of cooperation governs a situation: When the involved states have agreed in a treaty to turn the issue into one of international character. The matter then becomes an issue of international law due to its form.
International Law of Coexistence (4 characteristics)
CPNS
- Contains the answers required to separate the powers of the sovereign states and thereby uphold peaceful coexistence.
- It is primarily horizontal in the sense that it is mainly concerned with the manner in which sovereign states interact with and between each other.
- It is not concerned with binding states closer together in some sort of unified international ‘community’.
- It seeks to ensure that states can pursue their different and separate interests in a way that respects the sovereignty of other states.
International Law of Cooperation (4 characteristics)
CMOC
- Contains the legal answers to issues that are not inherently of interest to 2 or more states but which have been turned into matters of international character through the adoption of a treaty.
- It is much younger than the international law of coexistence. After WWII, international law began to be concerned with the manner in which sovereignty authority was exercised within individual states.
- It is optional: states decide for themselves if they want to turn a matter previously dealt with by national law into a matter of international law.
- It has a consensual character.
International law supersedes national law, but how states fullfill international obligations is often left to them (see the connection with state sovereignty), with exceptions for specific EU regulations.
Integration of international law into national systems follows either the monist or dualist approach.
Monist approach (the Netherlands), 3 characteristics and 1 example
DNB
- International law has direct effect upon ratification.
- No further domestic action needed post-ratification. International law is self-executing.
- Based on the idea of a single or intertwined legal system that are presumed to be coherent. (Grundnorm, Hans Kelsen).
International law prevails over national law.
Example: France, the Netherlands (moderate monist system).
Dualist approach (the UK) 2 characteristics
IS
- International law does not have direct effect in national law; this approach requires explicit integration or transposition into national law post-ratification. Can be incorporated by a short statue with the treaty as an annex, or through thorough reformulation, amendment of existing legislation and interpretation in new national legislation.
- Based on the concept of separate, independent legal systems.
National law prevails over international law.
The 3 criteria where … DUO
- Decisiveness
- Unconditional and sufficiently precise
- Objective applicability
In practice there is often no completely monistic or dualistic system.
- What kind of system a state has can often be found in the constitution of that state.
Moderate monist system in the Netherlands, because: …
It is not necessary for international law to be integrated into national law to have a direct effect (art. 93 Gw). In that sense, the Netherlands is mainly monistic.
International law only overrides national law if it is ‘binding on everyone’ (Article 94 Gw). This imposes a restriction, which makes the Netherlands somewhat less monistic.
Peace of Westphalia
International society of individual sovereign states of equal importance.
