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Law Notes International Law Notes

Theory Notes

Updated Theory Notes

International Law Notes

International Law

Approximately 121 pages

These exam notes were used to achieve a High Distinction in International Law at Monash University. At the time of taking the exam the policy question was pre-advised by the lecturer and therefore the prepared answer is not included here.

The notes cover all course content. They include clear and easily usable exam problem structures. The notes are easily navigated as include clear and comprehensive lists of contents and page numbers.

The author of these notes has never scored less than a ...

The following is a more accessible plain text extract of the PDF sample above, taken from our International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

IL: Theoretical/other stuff cut out

Positive, natural and soft law 2

The post-WWII vision for the UN 3

Treaties 3

Interpretive declarations [not reservations, but similar] 3

Relationship between municipal and national law 4

Monism and dualism 4

Personality, statehood and recognition 4

Rights of states 4

Succession of states 4

Public international organisations 4

Responsibilities, status, privileges and immunities 7

Territory and sovereignty 7

Competing claims 7

Intertemporal law 7

Jurisdiction of tribunals to enforce international law 11

State responsibility 8

Fault element 8

Use of force 9

UNC Art 39 9

International criminal law 9

Goals of ICL 9

Retributive vs restorative justice 10

Sources of international law 2

Statute of the International Court of Justice Article 38(1) [sets out sources] 2

Other possible sources besides the ICJ Statute Art 38(1) [since it is not exhaustive] 2

Enforcement of international law 10

The United Nations and other international organisations 4

The UN 4

UN Charter Art 1 [Purposes] 4

Principal UN organs 5

Security Council 5

General Assembly 5

Other organs 5

Other international institutions 5

International legal persons other than states 6

Entities with legal personality 6

Public international organisations 7

International human rights 10

Treaties 10

International Court of Justice 11

Judges 11

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:

  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; [primary source]

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

  2. international custom, as evidence of a general practice accepted as law; [primary source]

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

  4. 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]

    1. 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.’

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

    1. 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 persuasive

  • Decisions 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

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 juris

  • Other 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...

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