International Law Notes

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  • Topic: Law, International Court of Justice, Treaty
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  • Published : March 5, 2013
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International Law Reading Notes:
Ch. 3: Sources
* There is no single body to create laws internationally binding upon everyone nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. * Sources: provisions operating within the legal system on a technical level * Reason and morality are excluded as well as functional sources * Survey of process whereby rules of international law emerge * Article 38 of the Statute of the International Court of Justice is an authoritative giver of sources * Sources are derived from:

* International conventions (general or particular) establishing laws expressly recognized by states * International custom: general practice accepted as law * General principle of law as recognized by nations

* Judicial decisions
* Custom: substance must be looked for in the actual practice and opinion juris of states * Opinion juris sive necessitatis: an opinion of law. Belief that an action was carried out because it was a legal obligation. * Developed by Francois Geny

* Difficult in proving increasing reference to conduct within IO, such as content of resolutions and condition of adoption * Duration, consistency, repetition, generality (Dead chickens rot green) * Instant customary law is possible when opinion juris is clearly established even if repetition is not * Some states are more influential than others, this is reflected in that custom may be created by a few states * Failure to act can arise from a legal obligation or an incapacity/unwillingness to act * Abstention could give rise to recognition to custom if it is consciously done. * In other words, intentional  silence is acquiescence * Acquiescence: tacit recognition manifested by unilateral conduct which the other party may interpret as consent and as founded upon the principles of good faith and equity * Problems with acquiescence:

* Not wish to offend gratuitously
* Reinforce political/diplomatic
* How state practice is determined:
* Speeches, conventions, resolutions, press, treaties, general practice of international organizations, decisions of national courts. * New laws in conflict with existing laws can only continue if other states follow suit * Local rules develop which bind only a set group of states or just two states. * Local customs depend on a particular activity by one state being accepted by the other state (or states) as an expression of a legal obligation or right * Treaties: creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves. * Obligatory nature of treaties is founded upon the customary national law principle that agreements are binding (pacta sunt servanda) * Pacta sunt servanda: idea that international agreements are binding (general principle) * Divided into ‘law-making’ treaties (general) and ‘treaty-contracts’ (specific) * Seen as superior to custom because they require express consent * Provisions in a treaty may constitute the basis of a rule which when couples with opinio juris can lead to the creation of a binding custom * Treaty rule and customary rule do not absorb each other; maintain separate identity * Two rules with the same content may be subject to different principles with regard to their interpretation and application * Treaties may be constitutive in that they create international institutions and act as constitutions for them, outlining their proposed powers and duties. * General principles

* If there is no law covering an exact point (or decision) judges deduce a relevant rule from already existing rules or from the general principles of law recognised by civilised nations. * Non liquet: this situation ^

* Res...
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