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Law Notes Public International Law Notes

Sources Notes

Updated Sources 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. THE CONCEPT OF INTERNATIONAL LAW

‘International law’ refers to the body of rules and principles that regulate States in their relations with each other. But States are not the only subjects of international law: international organisations and, to a lesser extent, individuals can also bear rights and duties under international law.

The key organising principles of international law are Sovereignty, Territory, Non-intervention, Equality, Consent and Responsibility.

B. WHY IS INTERNATIONAL LAW BINDING?

Two main theories explain the binding force of international law: natural law and positivism.

International law is a positivist system of law, in that to be binding rules must have been adopted through one of the recognized means of law creation (treaty, custom or general principles of law).

The ICJ held in South West Africa (Ethiopia v South Africa) that humanitarian considerations are not sufficient in themselves to generate legal rights and obligations. The Court can take account of moral principles only insofar as these are expressed in legal form.

In international law, positivism has taken the form of voluntarism: it is the (common) will of States which gives international law its authority as law. The sources of international law (treaties, customary law, and general principles) all derive their binding source from State consent, which can be given expressly or implicitly (Lotus(France v Turkey)).

However, voluntarism cannot explain why new States become bound by general international law even if they have not consented to it; and, second, it cannot explain why States may not withdraw, as a matter of general international law, from customary rules.

D’Amato (1984) argues that international law is enforced through a system of reciprocal entitlements, such as the entitlement of statehood. Statehood means that the nation is a geographic entity entitled to exert its own legal jurisdiction in the area within its boundaries and to claim the inviolability of those boundaries against all other states. Yet the borders remain as such only by virtue of their recognition by other states, such that this entitlement may be said to carry with it reciprocal duties. The entitlement provides that the nation must respect the borders of other states, otherwise tit-for-tat transgression of each other’s borders would endanger the existence of the states in question.

A nation is nothing more nor less than a bundle of entitlements, such as the entitlement to enter into binding treaties with other nations, to a territorial sea etc.

Further, many of the idea and principles of international law today are rooted in the notion of Natural Law and the relevance of ethical standards to the legal order, such as the principles of non-aggression and human rights.

C. SOURCES OF INTERNATIONAL LAW

Lack of a legislature, executive and structure of courts within international law. One is therefore faced with the problem of discovering where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule. Nevertheless, there are ‘sources’ from which the rules of international law may be extracted.

A distinction is often drawn between ‘formal’ and ‘material’ sources. Formal sources are the processes through which rules of international law are created (e.g. the passage of a Bill through Parliament is a formal source of law) eg Art 38(1)(a),(b),(c)……IT IS LAW. Material sources refer to the actual document or place in which the rule is included (eg, a treaty or a United Nations resolution) eg Art 38(1)(d)……PROVIDES EVIDENCE OF LAW.

Standard point of departure: Art 38 of the Statute of the International Court of Justice (ICJ)

1. The Court, whose function is to decide in accordance with international law such disputes as are 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 59, 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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Is this an exhaustive statement of the sources of international law? It is arguable that Art 38 is only a direction to the court authorising it to consider various materials when deciding disputes submitted to it. It does not provide a complete list of the matters which the Court in fact considers. Art 38 makes no reference to resolutions of the UN General Assembly or to diplomatic correspondence, both of which figure prominently in the court’s judgments.

Purpose of customary law -> as the DEFAULT POSITION when there are no treaties available

1. TREATIES

Baxter paradox -> where there is a widely ratified treaty, harder to get evidence of opinio juris for state conduct because the practice follows the obligations during the treaty and not because those states think that practice should be a customary law

2. CUSTOM

(i) General customary Law

There are two requirements of custom: a (i) ‘general practice’ (state practice), which must be (ii) ‘accepted as law’ (opinio juris) (North Sea Continental Shelf (Germany v Denmark)).

The relative importance of the two factors is disputed by various writers. Positivists such as Anzilotti (1928) stress the paramount importance of the psychological element. States are only bound by what they have consented to, so therefore the material element is minimised to the greater value of opinio juris. If states believe that a course of action is legal and perform it, even if only once, then it is to be inferred that they have tacitly consented to the rule involved. Following on from this analysis, various...

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