International Law

A European Perspective

Jan Wouters, Cedric Ryngaert, Tom Ruys, Geert De Baere

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN:
  9781849464161
• Edition: 1
• eBook ISBN:
  9781509909049
• Topic: Law
• Subtopic: International Law
• Index: Law

This textbook offers for the first time a comprehensive analysis of the classic doctrines and main areas of international law from a European perspective, meeting the needs of the many European law schools teaching public international law in English. Special attention is devoted to the practice of the European Union, the Council of Europe and European States – both civil law and common law countries – with regard to international law. In particular the book analyses the interplay between international law, EU law and national law in the case law of the Court of Justice of the EU, the European Court of Human Rights and national jurisdictions in Europe. It provides the reader with insights into how the international legal practice of the EU and its Member States impacts the development of international law, both in terms of doctrines such as treaty-making and customary law, the exercise of (extraterritorial) jurisdiction, state responsibility and the settlement of disputes, as well as particular sub-fields of international law, such as human rights law and international economic law. In addition the book covers other important areas such as the use of force and collective security, the law of armed conflict, and global and regional international organisations. It provides European perspectives on all these issues and will be of great value to students, scholars and practitioners.

1

Foundations, History and Theory of International Law

I.Definitions of International Law

Defining ‘international law’ is less straightforward than it might seem. Up until the first half of the twentieth century, the majority scholarly opinion was that only States could be subjects of international law in the sense of possessing international legal personality and being bearers of international legal rights and obligations (among which the right to bring claims under international law). International law, in the past often referred to as ‘the law of nations’, could therefore have been defined as ‘the totality of norms that regulates relations between States’.

That classic conception of international law gradually became less plausible during the course of the last century. After the First World War, international legal norms came into existence on an ever greater number of subject matters formerly well outside the scope of international law, and new actors emerged. These included in particular international organisations established by States (such as the League of Nations and the International Labour Organization, established in 1919 by the Treaty of Versailles), non-governmental organisations, transnational enterprises, and finally the individual itself.¹ Indeed, Hersch Lauterpacht went so far as to argue that ‘the individual human being is the ultimate unit and end of all law, national and international’.²

In other words, international law evolved into a system recognising subjects other than States. A prima facie plausible adjusted definition of international law could therefore be: ‘the law regulating the relationships between subjects of international law’. However, that definition suffers the defect of using a concept – ‘subjects of international law’ – that itself contains the concept ‘international law’ that is being defined. The present book therefore prefers a definition that is perhaps less clear-cut, but is logically coherent and flexible enough to adapt to the evolutive character of international law: ‘international law is the law that regulates international relations’.

A further distinction needs to be drawn between public international law or international public law on the one hand, and private international law or conflict of laws on the other hand.³ The latter traditionally consists of norms of national law that contain rules to determine the courts of what State have jurisdiction and the national law of what State applies to a certain private law dispute that has connections with more than one national legal order (such as a car accident between a French and a German car on Swiss territory or a marriage between an Argentine woman and a Belgian man). Nevertheless, States have since the nineteenth century been coordinating their systems of conflict of laws through treaties, in other words through an instrument of public international law. That has, in particular, been the case within the framework of the Hague Conference on Private International Law.⁴ In other words, while it is useful to make a conceptual distinction between public international law and private international law, this should not be taken as implying that they belong to wholly different worlds. Rather, norms of public international law shape and are given effect through private international law, which in turn can be said to effect an international ordering of regulatory authority in private law, structured by international principles of justice, pluralism and subsidiarity.⁵

II.Functions of International Law

A first function of international law exists in delimiting the jurisdiction of the subjects of international law. In particular, international law delimits jurisdiction:

—Ratione territoriae: the jurisdiction of one State ends where that of another State begins, ie, at the internationally recognised border or where the international domain starts (eg, the high seas or space). In principle, territorial jurisdiction applies, which means that a State can only exercise its competences within its territory. However, a number of exceptions apply, which will be discussed in Chapter 9 on jurisdiction;

—Ratione temporis: international law governs issues that may arise regarding the emergence of new States, State succession (eg, the dissolution of the Soviet Union, Yugoslavia or Czechoslovakia or the absorption by the German Federal Republic of the German Democratic Republic), or the extinction of States;

—Ratione materiae: this is especially relevant for international organisations, which have only been attributed certain specific competences by the founding States.

Specifically with respect to States, the regulation of their jurisdiction is important because it is at the heart of an international legal order that seeks to provide for the lawful coexistence of sovereigns. Rules of jurisdiction reflect fundamental requirements in the international system that flow from the acceptance by States that there are limits on their own regulatory authority, and that exercises of regulatory authority by foreign sovereigns are themselves legitimate.⁶

A second function of international law is therefore the regulation of the coexistence of subjects of international law. In particular, international law determines means of dispute settlement or conflict prevention, the use of force, the usage of territory, diplomatic and consular relations, and international responsibility.

A third function of international law is to regulate international cooperation between subjects of international law. This concerns, in particular, the law of international organisations, which has seen striking developments since the Second World War, but equally treaty regimes establishing specific duties of cooperation without giving rise to the establishment of an international organisation.⁷

The following table compares a number of basic characteristics of what can be termed the international law of coexistence and the international law of cooperation.⁸ It must be kept in mind that international law is today still to an important extent a law of coexistence, ie, a framework of legal norms that delimit the jurisdictions of independent States. Nevertheless, the number of international legal rules that govern the cooperation between those States, which in practice have become ever more interdependent, is steadily growing.

Table 1 Comparison Law of Coexistence – Cooperation

THE LAW OF COEXISTENCE	THE LAW OF COOPERATION
1. Premises
Sovereign equality of States	Awareness of the relativity of sovereignty and the need to pool it
States as hermetic entities (‘billiard balls’)	States as interdependent actors
No common interests between States, except for the need for rules of delimitation of jurisdiction	Common interests and values that cannot be protected or furthered unilaterally
2. Functions of international law
How to maintain peaceful coexistence between States	How to enable efficient cooperation between States
Mostly questions of interstate relations (‘international traffic rules’)	A significant number of policy questions that until now were mostly discussed and settled within States
Mostly prohibitions	Mostly obligations
3. Norm-creating processes ...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Table of Cases
• Table of International Instruments
• List of Abbreviated Legal Instruments
• List of Abbreviations
• List of Tables
• Introduction: International Law, A European Perspective
• 1. Foundations, History and Theory of International Law
• 2. Sources: Treaty Law
• 3. Other Sources – Hierarchy
• 4. The Relationship and Interactions between International Law, EU Law and National Law
• 5. States
• 6. International Organisations
• 7. Regional Organisations
• 8. Non-State Actors
• 9. Jurisdiction
• 10. Diplomatic and Consular Relations
• 11. Immunities
• 12. International Responsibility
• 13. Peaceful Settlement of Disputes
• 14. Use of Force and Collective Security
• 15. The Law of Armed Conflict
• 16. Human Rights Law
• 17. International Criminal Law
• 18. Law of the Sea and Global Commons
• 19. International Economic Law
• 20. International Environmental Law
• Appendix I: Overview of Treaty Ratification
• Appendix II: Basic Bibliography and Websites on International Law
• Index
• Copyright Page