International Law
Michel Hoenderboom
Week
1 (Done).
2
3
4
5
6
7
8
Subject and contents (lessons)
Introduction week
Introduction to public international law.
Subjects of international law.
Sources of international law.
Treaties.
State Sovereignty,territory
and lurisdiction.
Peaceful.
Use of force.
Introduction (Week 1):
International law: Set rules how states should interact.
Actors of international law:
- Focus on the role of states as they are the main actors in international law.
- Other actors such as international organisations like the UN.
- Multinationals and Ngo’s like shell.
- The role of the individual.
Relevant sources of international law (Arictlee 38(1):
Primary sources:
- International conventions (treaties).
- International custom.
- General principles of law.
Secondary sources:
- Judicial decisions.
- The teaching of the most highly qualified publicists of the various
nations.
Territory: Other countries aren’t allowed to interfere in territory of a sovereign state.
International relations and law:
-Schools of thought identified in international relations/foreign policy:
-Realism: Putting your own national interest above all.
-Idealism: The Ideal world. Perfect conditions.
1. Realism:
- Protecting and promoting national interest.
- Based on calculations of power.
- Might lead to conflict.
- States better served by good relations -> diplomacy.
- Law: Subsidiary means
2. Idealism:
- World in which we should live rather than we are living.
- Grants prominent role to Pil: Public international law.
Law and legitimacy
- PIL reflects recognition by states of common principles governing their interaction.
- World Stability results from legitimacy:
- International agreement about nature of workable arrangements.
- Principle of PIL : Pacta sunt servanda. (If you made an agreement, you are
expected to stick with that agreement).
Law and justice
1648: Peace of Westphalia.
- Sovereign states.
- No superior authority.
1815: Vienna congress.
- Napoleon was defeated.
- Re-establishment of Westphalian order.
- Rudimentary ‘collective security’:
- Holy alliance -> ‘Concert of Europe’.
- The balance of power that existed in Europe from the end of the
Napoleonic war (1815) to the outbreak of world war 1 (1914).
- 1914:1918: World war 1.
- Led to League of nations. <- Never want to see a world war again.
- International cooperation.
- Failed, because of world war 2.
- 1939-1945: World war 2.
- Led to ‘revolutionairy’ system of collective security:
- Right to resort to war vested in United Nations Security Council.

Self defence.
Law and justice:
-Many consider westphalian system insufficient to achieve justice.
- Protection of human rights.
-Example: Responsibility to protect (R2P).
- Reassessment of realism because of.
- Globalization.
- Increased likelihood of ‘transnational harm’.
- Fall of Berlin Wall.
- Increased interest in ‘just world order’.
At home and abroad
Domestic/municipal law:
- Stops at border.
- Principal actors: individuals.
- Separation of powers:
- Promulgated by legislature – Executed/enfored by executive – Disputes settled
by judiciary.
- Vertical system.
Pil:
- Governs interaction between states.
- Principal actors: States.
- No real application of separation of powers.
- Horizontal system.
-Pil mandatory?
- Do states ‘pick and choose’ rules?
- Reciprocity guarantees adherence to rules.
- Preventing inter-state confrontation.
- Where survival is involved international law may take second place. ‘’ (shaw).
4 Subjects of international law
1. States
Differences between a nation and a state.
- A nation is a group of people with the same language, background, religion and
ethnicity.
- A state has a government a territory -> Clear borders and a population.
A state can do things that we are not allowed to do as single humans. As example a state
could use force to achieve a target.
When is something a state?
- Declaratory: One is state when you have clearly defined borders, a territory and a
population.
- Constitutive: Recognition by other states.
Recognition of a state could be done in 2ways:
- Express: We the USA declare Palestina as a sovereign state.
- Implied: If the Netherlands signs a contract with Palestina, one could say that the
Netherlands declare Palestina as a sovereign state.
2. International organizations (Ios)
- Rights and privileges are limited for organisations, because they only do things which
are asigned tot heir organisation. So as example the IAEA (Nuclear), can’t control an
army, but they can do almost everything based on nuclear weapons.
- IO can conclude treaties with other organisations ot states.
- IO can enforce rights on international plane.
- IO: Legal personality under domestic law.
- IO needs immunity from domestic jurisdiction.
3. Non-state actors
Non-governmental organizations (NGO).
- Set up by individuals.
- They act in some kind of interest.
- Multinationals are considered NGO’s.
- Not set up by states.
- An NGO can’t sign a treaty.

NGOs only exert indirect, informal influence on treaty-making.
Money/knowledge=power.
4. Individuals
Diplomats
- Immunities
International Law dealing with individuals:
1. International human rights law:
- From internal to international concern.
- Indirectly involving individuals.
2. International humanitarian law
- Jus in bello. (International humanitarian law (IHL) is the law that regulates the
conduct of armed conflict (jus in bello))
3. International criminal law
- Regards individuals directly.
Lesson 3
Sources of PIL.
Article 38, ICJ Statute
1. The Court, whose function is to decide in accordance with international law such
disputes as are now submitted to it, shall apply:
A. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states.
B. International custom, as evidence of a general practice accepted as law.
C. The general principles of law recognized by civilized nations.
D. Subject to the provisions of article
International conventions
Treaties:
- written agreement whereby parties bind themselves legally. (Pacta sunt servanda).
Types:
- Between states, Io’s and IOs (state) and Io.
- Bilateral (2parties) or multilateral (3or more parties).
- Law making or treaty contracts.
1) Law making: Establish general patterns of behaviour for the parties over a certain
period of time in certain areas.
2) Treaty contracts: Regulate some specific co-operation between states, such as a trans
boundary movement of specific hazardous waste.
Conditions to enter into force:
- Signature.
- Ratification.(Internal ratification: If a treaties has been signed, there has to be a process
in the country and External treaty is to show other partners that you are binded tot hat
treaty.
International conventions
- Some treaties are the result of codifying existing customary law, such as laws
governing the global commons, and jus ad bellum.
- Effectiveness depends upon the number of states that ratify (bekrachtigen) or accede
to the particular convention.
- Most multi-lateral treaties fall short of achieving such a near universal degree of formal
acceptance.
International custom
Relationship with treaties:
- Special rule prevails over general one.
- Later law repeals earlier one.
Elements of customary international law, two requirements:
- State practice.
- Opinio juris (TEST!!!)
- An opinion of law & action carried out because it’s a legal obligation.
- Differentiated from acts of comity by the presence of opinio justice.
International custom
State practice
Take into account every activity of the organs and officials of states that relate to that
purpose.
- Only relatively powerful countries with extensive international contacts and interests
that have regular opportunities of contributing by deed to the practice of international
law.
- The principal means of contribution to state practice:
- At meeting of international organizations, particularly, the
- Opinio Juris
An opinion of ....
General principles of law
Principles of justice, equity or nature law.
- Legal principles that are common to many systems of municipal law.
- Significance of general principles has undoubtedly been lessened by the increased
intensity of treaty and institutional relations between states.
For example: A state that has, by its conduct, encouraged another state to believe in the
existence of a certain legal or factual situation, and to rely upon that belief, may be
estopped from asserting a contrary situation in its dealing.
Judicial decisions
- Statute: ‘’Subsidiary means’’ to determine law.
- Scholars: Judicial decisions may create law.
- In any event: Case law may be evidence of cil (Customary international law)
BLACKBOARD LECTURE 3!
4Sources of international law:
1. Conventions.
2. ICL. (International customary laws).
3. Principles.
4. Judicial decisions.
Treaties
Lecture 4
- Treaties governed by Vienna Convention on the law of treaties (1969). Partly reflecting
customary international law.
- States remain master of their deeds and products. I t is up to a sovereign state if it
decides to participate in a treaty or not.
Definition of treaty: Art 2a Vienna convention:
‘’ Treaty’’ means as international agreement concluded between states in written form
and governed by international law.
- Parties bind themselver legally.
- Treaty can also be concluded between state(s) and international organization or
between IOs.
Process of Treaty-making
1. States feel the need to manage issue(s) of mutual concern, interest.
2. Pre-negotiations: Relevant players ‘sound out’ each other.
3. Official negotiation sessions.
- Delegations need ‘full powers’ to bind state/IO they represent; need ‘credentials’
You can only negotiate, if you got full powers from your country.
- There is often basic text as starting point for negotiations.
- Documents from negotiations process: ‘travaux preparatoires’.
4. Treaty adoption: Agreement by negotiating parties to finalized text to enter into force,
treaty needs:
- Signature.
- Ratification.

- Internal: Related to the constitutional (internal) laws of a contracting party. In many
instances this involves approval by the national parliament.
- External: Showing to other party’s that Congo is now Legally bound to that certain
treaty.
5. Principle of Pacta Sunt Servanda: Parties are leally bound and will carry out its
obligations in good faith.
Effect of Treaty in Domestic Legal System
Basic Options:
1. Monist doctrine
- PIL is considered as part of domestic legal system.
2. Dualist approach
- PIL domestic law are separate.
- National legislature (=wetgevende macht) needs to adopt law to incorporate
treaty.
Effect off treaty on Domestic law
- Countries with a Monist system: Treaty is automatically part of international law and
international law.
- Countries with a Dualist system: Treaty is NOT automatically part of international law
and national law.
Adding to, changing treaty
If states do not want to change treaty:
- Protocol (addition) possible.
If they want to change:
- Amendment: 100/100 must accept a change into the treaty, if one singly country won’t
allow it, you can’t change the treaty.
- Modification: 99(or less)/100 Affecting only particular parties. If you don’t decide to
join, you won’t join without affecting other party’s.
Regime (Subfield on international law)
- Treaty puts regime into place.
Regime: ’Principles, norms rules and decision-making processes around which actor
expectations converge in a given arena. ‘’
Treaty Text
- Preamble (introduction): Not legally binding; used to determine object,
- Main or operative part
- Articles.
- Legally binding.
- Include obligations, rights.
- Final clauses
- Related to functioning of treaty.
- Testimonium
- Where, when, signature. (Signed in 1980, New York....)
Treaty interpretation
Allowed to interpretate according to certain standards.
State Sovereignty/ Territory and jurisdiction:
- Sovereignty implies independence from other states.
- Internal sovereignty.
- External sovereignty.
- Right of sovereignty has as corollary duty: Not to infringe on other
Immunity
- Historically: Absolute state immunity.
- Nowadays: Restricted state immunity.
- Related: Head-of-state immunity from foreign jurisdiction.
Territory
- State has title to territory.
- Terry is inviolable. It i not allowed to interfear and concern the territory of nabour
states.
- Principle: Non-interference in internal affairs of other state.
- Principle of self-determination may run counter to it.
- In order to define the bounders of a new founded state one should take the old
bounders of the old state as their new bounders. However if there is a problem that one
could not easily take the old bounders to the new country
ways to acquire territory:
- Prescription: Method of acquiring land that belonged to other state. Requires
acquiescence of ‘losing’ state relevant factor: which state exercised greatest degree of
effective control?
Prescription is prohibited if effectuated by force.
- Cession: Simply buy the territory from another state.
- Occupation: Bringing under effect control of no-man’s land.
Important: Recognition or acquiescence by third states of effective control by acquiring
state.
Territory exclusivity reduced by
- Agreements, F.E. allowing A to cross territory of state B.
- Awareness of ‘transnational’ concerns.
Exceptions to territory of sovereign states:
BLACKBOARD (Lesson 6)
Jurisdiction
Jurisdiction: Power of state to regulate and impact on people, property and
circumstances in its territory, airspace and waters; Legal authority to legislate, execute
laws and adjudicate cases
BLACKBOARD (Lesson 6)
- Judicial jurisdiction in criminal matters: Prosecute or extradite.
- Territorial principle
- Subjective: A sovereign is recognized as having the power to adopt criminal laws that
apply to crimes that are physically committed within his territorial borders.
- Objective: A state has jurisdiction over a person whose behaviour outside its territory
causes injury within its territory.
- Active nationally principle= A state has jurisdiction over its nationals, regardless of
whether the crime has been committed within the own country or abroad.
- Protective principle= A state may punish acts that threaten its security even if
committed by non-nationals outside of the territory of the state.
Example:
A person with the nationality of Denmark and South Africa, he lives in South Africa.
Furthermore he is an XTC producer and there is a waste of beaches in Morocco and
Tunesia.
Q: What country can prosecute him?
A: All the country’s because of the different principles. For example: Morocco and Tunesia
could refer to the objective territory because it hurts it territory and Italy could refer to the
subjective territory because it happened in their territory and Denmark and South Africa
could refer to the Active Nationality principle because it happened because of their citizen.
More controversial:
- Passive nationality principle= some states assert the right to try a foreigner for injuring
its nationals outside its territory. (Genocide, international crimes and slavery).
Different between protective principle and universality principle is discussable as for
example 100citizens are part of the state but do not represent the whole state.
- Application of principles needs mechanisms to effectuate: Extradition.
- Application might lead to concurrent jurisdiction.
Week 7
6 ways to solve a conflict:
 Negotiations: 2 parties talk to each other directly
 Mediation: the conflict between 2 parties is being solved by a neutral 3rd party
 Adjudication
 Conciliation
 Arbitration
 Judicial settlement (ICJ)
Un Charter:
Article 2.
All members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice are not endangered.
Article 33.
- (1) “the parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall first of all, seek a solution
by negotiation, enquiry, meditation, conciliation, arbitration, judicial settlement
resort to regional agencies or arrangements, or other peaceful means to their
own choice.
- (2) “ the security council shall, when it deems necessary call upon the parties to
settle their dispute by such means.
Dispute = disagreement over point of law or fact, conflict of legal views or intrests.
International conflict management techniques:
A. Diplomatic procedures
B. ‘ Quasi-judicial method’ = a combination of on one hand legal techniques and on
the other hand diplomatic techniques
C. Adjudication = toewijzing
4 diplomatic ways of solving a conflict with diplomatic procedures:
1. Negotiation
 Exchange of views between interested parties aimed at clarifying issues
and reconciling divergent opinions
 Does not involve a third party
2. Inquiry
 In case of differences of opinion between contending parties on facts,
impartial commission (ie reputable observers) of inquiry can be
established for fact-finding
 Rare to go by itself (usually combined with mediation
3. Mediation or “good offices”
 3rd party encourages contending parties to come to settlement

3rd party: individual or individuals, state, group of states or international
organization
 Good offices: a third party attempts to influence the opposing sides to
enter into negotiations
 Mediation: the active participation in the negotiating process of the third
party itself.
4. Conciliation:
 3rd party investigation of the basis of the dispute and submission of
report/suggestions for settlement
 Involves elements of both inquiry and mediation
 Emerged from treaties providing permanent inquiry commissions
 Do not constitute binding decisions, contrary to arbitration
5. Arbitration:
 Your lawyers are chosen for you
6. Judicial settlement:
 Going to the ICJ and let them figure it out
Week 8:
Use of force
Legal framework:
Un charter:

Art. 2 (4)
All members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the proposes of the
United Nations.


Prohibition of use of force is CIL
… and considered jus cogens (compelling law)… a temporary norm of int
law from which no derogation can be permitted



International law has not always opposed initiation of war
Right to resort to war: Jus ad bellum
As long as in accordance with contemporary
Exceptions to the rule (use of force is not allowed)
1. Security council authorization of use of force under chapter VII, un charter
 Art. 39 precondition ‘a threat to the peace, breach to the peace, or act of
aggression’
 Art. 42 ‘peace enforcement (use of force is authorized in such action by air,
sea or land forces as may be necessary to maintain or restore
international peace and security
2. Right of self-defence
 Art. 51 UN charter (if an armed attack occurs against a member of the
United Nations)
 ‘Inherent right’
 If armed attack occurs
- Anticipatory or pre-emptive self-defence?
o Anticipatory= Caroline standards of necessity and
proportionality (obvious attack is immanent) (more likely
to be legal)
o Pre-emptive= extreme form of anticipatory self-defence, not
yet threatening but could become so
- Caroline case (1873) conditions:
o Necessity
o Immediacy
o Proportionality
 No right of reprisal (vergelding/weerwraak)
 State must report action taken in self-defence to UNSC
3. Humanitarian interventions (just debated about and not generally accepted)
Case study: Libya




19 march 2011
Multi-state coalition
Military intervention in Libya
Response to events during the 2011 libyan
Case study: Syria
