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International Law Theory Exam Notes

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This is an extract of our International Law Theory Exam document, which we sell as part of our International Law Notes collection written by the top tier of Monash University students.

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IL: Theoretical/other stuff cut out

Sources of international law Statute of the International Court of Justice Article 38(1) [sets out sources]
Under Article 38(1) of the Statute of the International Court of Justice

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;
[primary source]

a. Note that UN Charter obligations prevail over other international agreements in the event of a conflict: UN Charter Art 103

b) international custom, as evidence of a general practice accepted as law; [primary source]
c)

the general principles of law recognized by civilized nations; [subsidiary source]

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. [subsidiary source]

a. ICJ Statute Art 59 provides that 'The decision of the Court [ICJ] has no binding force except between the parties and in respect of that particular case.'

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. a. 'Ex aequo et bono' means by reference to issues other than the applicable law: however no state has agreed to such a request in the past. Note: there is no necessary hierarchy of laws, though courts and tribunals will generally adopt the order in Art 38. General principles of law recognised by civilised nations [subsidiary source]
ICJ Statute Art 38(1)(c) is generally interpreted as allowing the ICJ to draw principles from municipal law. This may help to fill gaps where there is no applicable international law. Examples of the influence of municipal law on IL : the principles of equity eg good faith (Nuclear Tests cases); regime of mandates and trust territories (Trusteeship Council), Pacta sunt servanda, Jus cogens, Unjust enrichment, Rebus sic stantibus, Abuse of rights Judicial decisions and the teachings of the most highly qualified publicists ICJ Statute Art 38(1)(d) mentions on two different subsidiary sources: Judicial decisions There is no rule of binding precedent in IL (UN Charter Art 59). However, in practice international courts and tribunals do cite previous decisions and act within the jurisprudence established by earlier courts.Decisions of the ICJ are highly persuasiveDecisions of international arbitral tribunals and national courts are also often considered and applied (see, eg, Trail Smelter, Texaco, Island of Palmas, Mox Plant)

Teachings of the most highly qualified publicists

1 It is not certain who would be classified as a 'highly qualified publicist'; at the time the Statute was created there were fewer such writers, while now there are a great many. Presumably the International Law Commission's writings would fall under Art 38(1)(d).

Other possible sources besides the ICJ Statute Art 38(1) [since it is not exhaustive]UN Security Council Resolutions are binding (UN Charter Art 25), so a failure to follow the resolution is a violation of IL. It follows that the resolution itself must be a source of law; however, alternatively it could be said that the SC resolution falls under the treaty category since it is authorised under the UN Charter. Whichever way it is looked at, a SC resolution can create a binding legal obligation.UN General Assembly Resolutions & Declarations are not binding, but may be evidence of state practice and opinio jurisOther organisations (ILO, WTO, World Bank, etc) issue mandates, pass resolutions and policies. Might be internally binding: however, the source of the binding nature is the constitution, so they come about from consent of the states

Positive, natural and soft law Positive law Proponents of positive law note that the source of law is the will/command of the sovereign, backed by the threat of enforcement. The law is as the lawmakers make it. Natural law Proponents of natural law believe that laws derive from nature and that there are natural rules for interactions. Natural laws include 'fundamental' or 'natural' rights. These laws coexist with positive law. Soft law 'Soft law' refers to instruments that have a normative effect - that is, they influence the behaviour of actors, but are not legally binding. However, changing behaviour and consensus building is incremental until a critical mass of opinion sufficient to give rise to a binding law is reached. Soft law is the interim; states may change their behaviour and feel some sort of compulsion to comply. States may support a declaration of the General Assembly or other soft law instrument if it is not binding on them at an early stage (as would be the case with a treaty). An example of soft law is the Millenium Development Goals. A failure to meet the goals will not result in sanctions, but they show there is a consensus on what should be done. Over time, soft law can become hard law. For example, a recommendation of the GA or a lower body may later emerge in treaty form).

The postWWII vision for the UNMaintain international peace and avoid war o

Prohibition on armed force: Art 2(4)Facilitate economic and social co-operationEnsure respect for dignity and human rightsFacilitate transition of former colonies to self-government o

Trusteeship Council was set up to oversee states and ensure self-determination

2 Treaties Interpretive declarations [not reservations, but similar]
States may submit interpretative declarations to avoid other states objecting to or challenging their reservations. McRae (quoted in Triggs) on interpretative declarations:

*

a 'mere interpretative declaration': where a state seeks only to offer an interpretation of the treaty and accepts that the interpretation may subsequently be found to be incorrect.

*

a 'qualified interpretative declaration': where a state purports to make its acceptance of the provision in question conditional upon its interpretation being accepted as correct. This type of ID is more like a reservation as it effectively modifies or excludes the terms of the treaty by overriding any contrary interpretation. McRae suggests the legal consequences of reservations should attach to such declarations. o

McRae suggests that states should formally object to any so-called interpretative declaration to which it is opposed as it may prove to be a reservation in its legal effect.

Relationship between municipal and national law Monism and dualism-Monist states maintain that IL and municipal law are part of a single holistic legal regime. IL applies automatically and concurrently with the national law. o

Includes treaties and custom

o

IL usually prevails over inconsistent domestic legislation

o

Netherlands, Belgium, Germany are predominantly monist

Dualist states maintain that IL and municipal law are separate. IL does not have automatic application within the municipal sphere unless adopted by government by legislation ('transformed'). o

Cannot enforce IL within the domestic sphere until transformed

o

Australia, UK predominantly dualist

In between o

However, most states are somewhere in between since the interaction of IL with national law is so pronounced. Triggs states that the monist/dualist approach is largely outdated [4.7].

o

USA is in between: began from a dualist position but their constitution implies it is monist so treaties are automatically part of the domestic law. But courts are sceptical of IL.

Personality, statehood and recognition Rights of states
- Competence to make treaties and engage in multilateral negotiations to create new laws and acting to protect their citizens

3

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