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Sources Of International Law Notes

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Supv 1 - Sources of International Law Does International Law Exist?

1. Domestic Courts are frequently concerned with questions of il such as in Pinochet Cases or R v Jones where Lord Bingham said no-one can doubt the validity of IL.

2. The overwhelming majority of rules, treaties and laws are observed but not headline news.

3. Does existence depend upon its enforcement? Austin says rules become 'law' when issued by a sovereign, thereby denying IL 'legal' status. Hart rejects Austin's "command theory" and states that a rules becomes law in one of two ways: In a legal system, the rule is enacted in accordance with a secondary rule of recognition confirming its validity. In a primitive system, it is law merely because it is accepted as such by a large majority of the group as it lacks secondary rules. Primitive rules lead to (i) Uncertainty as to what law is clarified by rule of recognition (ii) Static there is no agency authoritatively to determine whether it is breached resolved by rules of adjuication and (iii) Inefficiency resolved by "Rules of Change". Thus Hart states IL has a "doubtful" claim of being a legal system.

4. Jennings & Watts say that is a mere problem of definition. They acknowledge the weaknesses of IL by lack of enforcement. Tomushchat argues there is IL guilded by rules of jus cogens and obligations erga omnes, combined with an emerging unwritten constitution such as sovereign equality in Art 2(1) UN Charter, sources in Art 38 ICJ Statute and Art 26 VCLT declaring every treaty as binding. More recently Habermas argues there is a transition from State Domination to a global society, and the international reaction to the Iraq war supports this idea of IL 'community'. Sources of International Law

1. International law is decentralised. There is no international legislature enacting binding rules, nor an executive to enforce it. There is the ICJ and ICC but acceptance of its jurisdiction is based on consent and isn't mandatory per Nicaragua (Merits).

2. Art 38 Statute of the ICJ notes the following sources of law: a. International Conventions b. International Custom c. General Principles of Law d. Judicial Decisions and teachings of publicists

3. This appears to be the hierarchy of procedure. Kammerhofter says the first is "hard law" and 2-3 are "Soft law" while 4 is relegated to a secondary level. a. Treaty Law i. Prevails over custom per Nicaragua (Merits) and Wimbledon Case. ii. Tin Council Case contrary to CIL, while Royal Prerogative extends to making of treaties, it cannot become substantive law without Parliament. Thus a treaty isn't part of English law until it is incorporated into the law by parliament. Thus unincorporated treaties are irrelevant. But per A v SoSHD (No 2) States have a duty to interpret common law favourably with all international obligations whether incorporated or not. But it can't be used for 2

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