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Law Notes Public International Law Notes

International Law And English Law Notes

Updated International Law And English Law Notes

Public International Law Notes

Public International Law

Approximately 460 pages

Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...

The following is a more accessible plain text extract of the PDF sample above, taken from our Public International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

A. MONISM VS. DUALISM

Monism and Dualism are ideal types: No national system confirms to either extreme

Policy considerations

  • Effectiveness -> monism superior

  • Uniform application of international law -> monism superior

  • Accountability of the Executive

  • Democratic legitimation

  • Disadvantage for ‘monist’ states

Avoidance techniques

  • Common in both ‘monist’ and ‘dualist’ states

  • Deny jurisdiction over foreign states

  • Lack of direct effect -> explicitly says so

  • Jurisdiction of the Courts of Danzig, (1928) PCIJ Series B No. 15

  • Conflict rules: later in time prevails; status of IL within domestic law

  • Self-executing vs. non-self-executing

  • Non-justiciability (see Sec E.)

  • Acts of State

1. DUALISM

Dualists like Anzilotti argue that international law and national legal systems are distinct. International law is perceived as a law between states whereas national law applies within a state, regulating the relations of its citizens with each other and with that state. Neither legal order has the power to create or alter rules of the other. When international law applies within any national legal system, this is because of a rule of that system giving effect to international law. In case of a conflict between international law and national law, the dualist would assume that a national court would apply national law, or at least that it is for the national system to decide which rule is to prevail.

- Eg UK especially for treaties -> since need to be translated into domestic law

PREDICATED ON THE SEPARATION OF POWERS – AND NOT THAT CONSENT ON INTERNATIONAL PLANE DOESN’T MEAN CONSENT ON DOMESTIC PLANE

  • Treaties

2. MONISM

Monism postulates that national and international law form one legal order. On that basis international law can be applied directly within the national legal order.

  • Ie no act of translation is required

Lauterpacht emphasized that individuals are the ultimate subjects of international law. The state is disliked as an abstraction and distrusted as a vehicle for maintaining human rights. International law is seen as the best available moderator of human affairs, and also as a condition of the legal existence of states and therefore of the national legal systems.

B. DOMESTIC LAW IN INTERNATIONAL LAW

A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for a breach of its obligations under international law, as any other situation would permit international law to be evaded by the simple method of domestic legislation.

This principle is reflected in Article 3 ARSIWA

‘the characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law’.

Article 32 ARSIWA

The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.

Article 27 VCLT

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Alabama Claims Arbitration, XXIX UNRIAA 1235-134 (1871) -> USA told UK said duty as neutral state not to give warships to enemies during civil war – UK said no property authority to prevent ship from sailing

  • Held long established that UK not excused because of domestic law limitations

Orthodox View: Viewed from International Law, Domestic Law Mere Fact from the stand point of IL – ie domestic law is state practice and not law

  • Certain German Interests in Polish Upper Silesia, PCIJ Rep Ser A No 7, 19

  • Cf Payment of Various Serbian Loans Issued in France, PCIJ Rep Ser A Nº 20, 46-47 -> request to apply french and serbian law, then ICJ applies domestic law as law

An associated question is whether the mere enactment of legislation can give rise to international responsibility, or whether an obligation is only breached when the state implements that legislation. There is a general duty to bring national law into conformity with obligations under international law In Exchange of Greek and Turkish Populations, it was held that a state is bound to modify its legislation to ensure the fulfilment of its international obligations.

Normally a failure to bring about such conformity is not in itself a breach of international law; that arises only when the state concerned fails to observe its obligations on a specific occasion. But in some circumstances legislation could of itself constitute a breach of an international obligation, for example where a state is required to prohibit certain conduct or to enact a uniform law.

1. NATIONAL LAWS AS ‘FACTS’ BEFORE INTERNATIONAL TRIBUNALS

National law are merely facts which express the will and constitute the activities of States (Certain German Interests). Dualists use this principle to buttress their arguments that municipal law does not belong to the same legal order as international law.

The concept of national law as ‘merely facts’ has distinct aspects:

  1. National law may itself constitute, or be evidence of, conduct in violation of a rule of treaty or customary law

  2. Whereas the principle of iura novit curia ("the court knows the law" - that the parties to a legal dispute do not need to pleador prove the law that applies to their case) applies to international law, it does not apply to matters of national law. International tribunals will generally require proof of national law (Brazilian Loans)

  3. When called upon to apply national law an international tribunal should seek to apply that law as it would be applied in the state concerned. It is for each state in the first instance, to interpret its own laws. International tribunals are not courts of appeal and they do not have the authority to substitute their own interpretation of national law (e.g. determining whether the rules are valid/constitutional) for those of the national authorities (Diallo (Guinea v DRC)).

  4. National law may be part of...

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