International Law Notes

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  • Topic: Law, Treaty, International law
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  • Published : May 21, 2013
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Public International Law Summary 2001
Creation and Ascertainment of International Law
Sources of International Law
-int’l law governs actions between states and represents the laws that they have voluntarily assented to through conventions, treaties or by usages generally accepted as expressing principles of law established in order to regulate the relations between coexisting legal communities with a view to the achievement of common aims Statute of the International Court of Justice

Article 38:
Court shall apply:
a)international conventions expressing rules accepted by states b)international custom as evidence of a general practice accepted as law c)general principles of law recognized by civilized nations d)judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of the rules of law 2. The provision shall not prejudice the power of the Court todecide a case ex aequo et bono if the parties agree thereto

-Article 59—decisions have no binding force except for the parties to the dispute -Article 38(1)—in order for the court to accept any rule of int’l law it must fall under either a, b or c -38(1)(d) –judicial interpretations and opinions of scholars are evidence by which the rules of int’l law are determined

-the rules that emanate from the law creating processes in Art. 38(1) are hard law there is a second category of law known as soft law that is not binding eg: Helsinki Accords—this soft law is a general code of conduct for states and though not binding is persuasive and can often lead to the formation of binding international customs

Conventions: involve multiple states
Treaties: generally only involve a few (1,2,3)

Rules of Custom
are created by:
1)actual state practice-must be consistent, general and virtually uniformly adopted 2)Opinio juris—legal obligations where a state has acceded in a practice for a substantial period of time without protest 3)General principles of law recognized by civilized nations -ICJ does not follow stare decisis but they use judicial decisions for comparitive analysis to interpret treaties, identify state customs and judicial opinions -if the parties have agreed to a set of rules to go to an arbitrator, such an arbitrator can decide the rules based upon principles of justice and fairness

-where there is a treaty, it governs
-where there is none, custom governs
-where there is one treaty state and one non treaty state, custom governs

English Channel Arbitration—(UK v. France) (1977)
PRINCIPLE: Where there is a treaty that has been changed over time by customs, that treaty can be superceded by custom if both disputing parties have adhered to the custom -however, this case did not allow that to happen

-the treaty in question was the Continental Shelf Convention of 1958 and the Court found that there was nothing to show that it had been superceded -treaties often include cofifications of custom—does the treaty or the custom supercede?

Military Activities In and Against Nicaragua [1986] ICJ
PRINCIPLE: operation of treaty process does not deprive international custom of its separate applicability -reason for this is that if one party breaches a part of the treaty that is fundamental and the other party seeks to treat the treaty as repudiated, the laws of custom will still bind

Article 43 of Vienna Convention on the Law of Treaties: Invalidity, termination or denunciation, withdrawel or suspension of operation does not affect the parties obligations in international law independent of the treaty

Treaties
-there is a distinction between law making treaties and treaty contracts -law making treaties are generally those accepted by a number of states eg: 1961 Vienna Convention on Diplomatic Relations -treaty contracts create special rights by operation of the principle of pacta sunt servanda which are akin to private law contractual rights -treaties codify,...
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