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Questions and Answers
What concept refers to generally applicable international legal norms?
What concept refers to generally applicable international legal norms?
Define 'Westphalian sovereignty.'
Define 'Westphalian sovereignty.'
Westphalian sovereignty refers to the principle that every state is equal regardless of its size, emphasizing the idea of full power within a state.
The Peace of Westphalia established the framework for the modern international legal system.
The Peace of Westphalia established the framework for the modern international legal system.
True
____ sovereignty emphasizes that other states should not interfere with the internal affairs of a state.
____ sovereignty emphasizes that other states should not interfere with the internal affairs of a state.
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What is the essential difference between national law and classical international law?
What is the essential difference between national law and classical international law?
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Which of the following statements concerning classical international law is true?
Which of the following statements concerning classical international law is true?
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In classical international law, there was a judiciary system in place for dispute resolution.
In classical international law, there was a judiciary system in place for dispute resolution.
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Match the following terms with their definitions:
Match the following terms with their definitions:
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What are the sources of international law according to the content?
What are the sources of international law according to the content?
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Treaties have a higher rank than general principles in international law.
Treaties have a higher rank than general principles in international law.
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What legal principle states that new laws override old laws?
What legal principle states that new laws override old laws?
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Jus cogens norms are generally applicable international legal norms known as ____________.
Jus cogens norms are generally applicable international legal norms known as ____________.
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Match the legal principles with their meanings:
Match the legal principles with their meanings:
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Study Notes
Decentralized System and Sovereignty
- Decentralized system implies no single leader or legislature, and every state is responsible for its own actions.
- States with parliament and judges coexist, and sovereignty is a key concept.
Peace of Westphalia (1648)
- Established the framework for international law, with every state equal regardless of size.
- Introduced the principle of sovereignty, where states have full power within their territory.
- Key principles include:
- Territorial sovereignty: non-interference by other states, with exceptions.
- Legal equality of states: one state, one vote, regardless of size or economic power.
- State consent as the basis of international obligations.
- Minimal rules of coexistence.
- Principle of non-intervention in internal matters of third states.
Structural Differences between National Law and Classical International Law
- Horizontal vs. vertical structure: national law has a central government, while international law lacks one.
- State is the only legal subject, with no national organizations or companies as actors.
- No parliament, informal law-making process, scarce legal rules, and no hierarchy of norms.
- No judiciary, with self-help often through military means.
Evolution of International Law
- From natural law to positive law, with a focus on state consent.
- Modern international law system:
- More actors, including states, transnational cooperations, NGOs, and individuals.
- Expansion of areas of regulation.
- Creation of institutional methods of enforcement.
Sources of International Law
- Article 38 of the ICJ Statute:
- Primary sources: international conventions, international custom, and general principles of law.
- Secondary sources: judicial decisions and teachings of highly qualified publicists.
- No hierarchy of sources, with all sources having equal standing.
Hierarchy of Rules
- Fundamentals that keep the international community together.
- Jus cogens norms: peremptory norms that apply even without state consent.
- Examples of jus cogens norms: prohibitions of aggression, crime against humanity, torture, slavery, and genocide.
United Nations and International Law
- Established on solid Westphalian principles, with respect for equal rights and self-determination.
- UN Charter:
- Introduced a ban on the use of force.
- Established the Security Council to maintain international peace and security.
- General Assembly: consultative role, with all member states represented.
- International Law Commission: promoting the progressive development of international law and its codification.
Jus Cogens and Obligations Erga Omnes
- Jus cogens norms are fundamental and non-derogable.
- Obligations erga omnes: everyone has standing, and states can bring others to court for infringement of these norms.
- Distinction between erga omnes and jus cogens: not all erga omnes obligations are jus cogens.
- Human rights and jus cogens: while human rights are fundamental, not all human rights norms are considered jus cogens.
Structural Differences between National Law and Classical International Law
- In a modern democratic state, there is a central government with a division of power, whereas classical international law reflected a horizontal structure with no central government.
- In classical international law, the state was the only legal subject, with no national organizations, parliament, or judiciary.
Key Features of Classical International Law
- No central government, parliament, or judiciary
- Informal law-making process with scarce legal rules and no hierarchy of norms
- Regulations of the assembly were just recommendations
- No judiciary; self-help, often by military means
Evolution of International Law
- Moved from natural law to positive law, which does not envisage a universal legal system, but rather one that is fragmented and in which states are bound by different legal obligations
Modern International Law System
- More actors have entered the system, including states, transnational corporations, NGOs, and individuals
- The state remains the central actor, but new actors have emerged and revolve around it
- Expansion of areas of regulation and creation of institutional methods of enforcement
Sources of International Law (Article 38 ICJ Statute)
- Primary sources:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states
- International custom, as evidence of a general practice accepted as law
- General principles of law recognized by civilized nations
- Secondary sources:
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
Hierarchy of Rules
- Treaties have the same rank as general principles, with no hierarchy of sources
- Two legal principles for settling conflicts of laws:
- Lex posterior derogat priori (new law derogates from old law)
- Lex specialis derogat legi generali (specific law derogates from general law)
Jus Cogens Norms
- Refers to generally applicable international legal norms that are mandatory and non-derogable
- Examples include prohibitions of aggression, crimes against humanity, torture, slavery, and genocide
- Art 53 of the Vienna Convention defines jus cogens norms as those accepted and recognized by the international community of states as a norm from which no derogation is permitted
Primary Sources of International Law
- International conventions establishing rules recognized by contesting states, e.g., treaties
- State consent is essential, and they are bound by the treaty by consent
- International custom, evidenced by general practice accepted as law
- General principles of law recognized by civilized nations, e.g., good faith, fair trial, equality
Secondary Sources of International Law
- Judicial decisions and teachings of highly qualified publicists of various nations, as subsidiary means for determining rules of law
- Judicial decisions and teachings about the rule of law
Hierarchy of Sources
- No hierarchy of sources; sources are autonomous
- Treaties have the same rank as general principles
- Conflicts of laws are settled according to two legal principles:
- Lex posterior derogat priori (new law derogates from old law)
- Lex specialis derogat legi generali (specific law prevails over general law)
Fundamentals of International Law
- Jus cogens norms (peremptory norms) are fundamental international legal norms
- Apply even if states do not expressly endorse them
- Mandatory international law, e.g., prohibitions of aggression, crime against humanity, torture, slavery, genocide
- Obligations erga omnes: everyone has standing, e.g., human rights
- Distinction between erga omnes and jus cogens: not all erga omnes obligations are jus cogens
- Human rights and jus cogens: not all human rights norms are considered jus cogens
Development of International Law
- League of Nations (1919) and Permanent Court of International Justice (PCIJ)
- United Nations (UN) Charter: founding treaty of the UN
- Introduced a ban on the use of force and gave collective competence to the Security Council
- General Assembly: consultative role, organizational structure for all states
- International Law Commission (ILC): promotes progressive development and codification of international law
Article 103 of the UN Charter
- Obligations under the UN Charter prevail over other international obligations
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Description
This quiz covers the historical development of international law, including the distinction between jus naturale and jus gentium, and the contours of a modern international legal system.
