Module 2: Introduction to International Law

• International law

  • Many different definitions
  • “A body of rules and principles that states accept as binding on them, and which they commonly observe in relation to one another”
  • “A strict term of art, connoting that system of law whose primary function is to regulate the relations of states with on another”
  • The definitions are based on the subjects of international law → based in state acceptance
• What are the goals of international law?

  • Determine the competence of each international actor
  • Coexistence
  • Cooperation
• What is international law about?

  • International law is about the relation between independent but interdependent states.
• Who does international law apply to?

  • States
  • Supranational organisations → EU
  • International organisations → UN, WTO, NATO
  • NGO’s → Greenpeace, Amnesty International, Unicef
  • Transnational corporations
  • Individuals → under conditions, not in relationship between individuals
• Is international law binding on its subject?

  • Yes but:
  • Only because and to the extent it is accepted as binding by its subjects
  • Treaties only apply to their parties
  • Customs are based on evidence of general practice accepted as law
  • Consent necessary, unlike national law
  • Consent for an express text or custom to arise
  • Very limited exceptions to consent
  • Peremptory norms → fundamental norms such as prohibition of genocide and slavery
  • Soft law
  • Not binding but legal value → UN General Assembly resolutions
• Is there a central legislative power?

  • No central legislative power → it’s most prominent subjects create the law: states/ nations
• Sources of international law

  • Treaties - international conventions (Vienna Convention)
  • International Customary Law
  • General Principles of Law
  • Soft law
  • Judicial Decisions and Doctrine
• Treaties - international conventions (Vienna Convention)

  • = agreement negotiated between states
  • A treaty can come into force once a certain number of nations ratify the treaty, as specified in the treaty, or upon signature by the parties
  • A treaty cannot bind a non-party or non-participating state
  • Specific provisions in most treaties will identify when it becomes legally binding if/when they will terminate:
  • How compliance will be monitored and measured
  • How other nations may accede to the treaty
  • → Treaties are only binding upon states that choose to ratify the treaty
• International Customary Law

  Binding obligations on states based on their consistent patterns of behaviour if the practices arise out of a sense of legal obligations rather than convenience of courtesy
• International Customary Law

  • Must fulfil 2 elements:
  • State practice (objective element)
  • Opinion juris (subjective element)
• State practice (objective element)

  1. Consistent, widespread actions repeated over time

  2. Could be also refraining from practicing an act
• State practice (objective element)

  • Consistent practice of non-utilisation of nuclear weapons by States since 1945
• Opinion juris (subjective element)

  • Such settled practices must also be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory
  • The states concerned must therefore feel that they are conforming to what amounts to a legal obligation
• Where to find the traces of International Customary Law

  • Diplomatic practice
  • States' unilateral acts
  • International treaties
• General Principles of Law

  • Common principles of all legal systems and transposable to international level
  • These rules are essentially domestic laws found in nearly all legal systems
  • Examples:
  • Pacta sunt servanda → (“agreements must be kept”) → (ex: treaty enforcement)
  • Lex specialist derogate generalis → (“the specific prevails over the general”) → (ex: conflict of laws)
  • Sic utere tuo ut alienum non laedas → (“use your own so as not to injure another”) → (ex: international environmental law).
• Soft law

  • The content looks like more of a programme to be subsequently implanted → “if…then” formulation)
  • However:
  • They trigger the evolution of customary international law rules
  • Thus contribute indirectly to the law-making process and new regulations
  • They may be not binding, but they are nonetheless “performed because they embody balanced reciprocal interests”
  • Examples of soft law → codes of conduct, practices, guidelines, …
• Who enforces International Law, and how do they do it?

  • The state themselves enforces International law on their citizens by implementing national laws
  • States together enforce International law in the UN Security Council
  • Unilateral (self-help not prohibited)
  • By political pressure
  • By sanctions (retortions or countermeasures)
• How does the application of international law on individuals go?

  1. Is the treaty directly applicable?

  2. Is the treaty part of NATIONAL law?

  3. Did the treaty enter into force at the international level?

  4. Did the treaty enter into force at the national level?

  5. Parliamentary ratification

  6. Publication
• Direct effect of a treaty

  • First Requirement: Phrasing of the treaty is sufficiently clear, complete and unconditional to allow a judge to administer justice without additional treaty implementation (objective criterion)
  • Second Requirement: Intention to confer rights upon the citizens in the countries that are a party to the treaty (subjective criterion)
• What is a monist system?

  • Domestic and international law are one single legal order
  • Upon mere parliamentary ratification, the international treaty is directly applicable before a domestic court
  • Example of a monist system → Belgium
• • What is a dualist system?
  • Domestic and international law are strictly separated
  • International law requires national implementation (transposition)
  • Based upon mere treaty ratification, a national judge will not apply a treaty. He will only apply domestic legalisation.
  • Example of a dualist system → UK