Public International Law

Topics: International law, Law, Treaty Pages: 36 (8003 words) Published: November 7, 2009
Public International Law Notes
LAWS 6243

1. History of International Law
a. Ancient: Egypt, Mesopotamia, Greece & Rome
b. Middle ages: authority of Church commencement of political divisions that would become States. c. Renaissance: State as sovereign competition between States. d. Early Theories:
i. Spanish philosophers central to theory
ii. Vitoria: 1480-1546
1. theory of natural law: law divine from source 2. first mention of ‘just war’
iii. Grotius: considered founder of international law 1. promises must be adhered to
2. freedom of the seas
3. restitution for harm
4. just and unjust wars
e. Classical Period: 1648-1500
i. Positivist theories
ii. Law as sovereign command
iii. Emphasis on state behavior
iv. Vattel, Austin, Hart
f. International Organizations:
i. League of nations
ii. International postal union
iii. Permanent court of ICJ
iv. UN
v. WTO
vi. IMF
vii. ILO
g. Enforcement of IL
i. Mostly observed
ii. Reciprocity: Air Services Case
iii. Int. tribunals
iv. Trade sanctions and trading interests
h. Modern theories
i. Franck: Legitimacy
1. “The quality inherent in a rule that derives from a perception from those to whom it is addressed that it has validity” ii. McDougall, Laswell, Resiman (NH):
1. Analyses of the behavior of states
2. consider international laws to be an amalgam of decision-making i. New Stream
i. Kennedy, Koskenniemi & Carty:
1. Suggest that by analyzing the discourse and language of international law and international lawyers to discern common values that are described as law. j. Structure of Modern International Law

i. United Nations Charter – quasi institution
1. other UN linked institutions
ii. pacta sunt servanda – “obligations must be fulfilled in good faith” iii. preamble: “we the peoples of the UN”
iv. UN
1. GA
2. SC
3. Organs
4. ICJ
2. Sources of PIL
a. Art. 38 of Statute of ICJ:
i. art.38.a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states. ii. art.38. b. international custom, as evidence of a general practice accepted as law. iii. art.38. c. the general principles of law recognized by civilized nations. iv. art.38. 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. b. Customary Int. Law

i. Evidence of a general practice accepted as law ii. Elements of custom: general practice and acceptance (or opinion juris – belief that a practice is required by law) 1. generality:

1. number of states that agree
2. duration:
i. provided the consistency and generality of a practice, no particular duration is required. 3. uniformity, consistency of state practice: i. most actions of states constitute state practice ii. must be consistent practice across al state to generate rule iii. North Sea Continental Shelf Cases: 1. Party that relies on custom must provide that its exists such it has become binding on the other party that it is uniform. a. ct....
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