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InternationalLaw--Murphy--Fall2003

InternationalLaw--Murphy--Fall2003 - I NTERNATIONAL L AW F...

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Unformatted text preview: I NTERNATIONAL L AW F ALL 2003 O UTLINE Prof. Murphy 1) N ATURE , H ISTORY , AND S OURCES OF I NTERNATIONAL L AW a) Nature and History of Int’l Law i) International Law definitions (p. 1-4) (1) Restatement § 101- rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. (2) Sources of int’l law (a) Restatement § 102 (i) A rule of int’l law is one that has been accepted as such by the int’l community of states 1. in the form of customary law; 2. by int’l agreement; or 3. by derivation from general principles common to the major legal systems of the world (ii) Customary int’l law results from a general and consistent practice of states followed by them from a sense of legal obligation (iii)Int’l agreements create law for the states parties thereto and may lead to the creation of customary int’l law when such agreements are intended for adherence by states generally and are in fact widely accepted. (iv)General principles of common to the major legal systems, even if not incorporated or reflected in customary law or int’l agreements, may be invoked as supplementary rules of int’l law where appropriate. (b) ICJ Statute, Art. 38 – lists 4 sources of int’l law (i) International conventions (ii) International custom, as evidence of a general practice accepted as law (iii)General principles of law recognized by civilized nations (iv)Judicial decisions and scholarly writings (3) Structure: largely horizontal (a) Monism – practice of states where int’l law is directly applicable and binding within its national legal system (int’l law automatically becomes nat’l law) (b) Dualism – practice of states wherein int’l law must be expressly incorporated by some action (i.e. enacting statute) to be binding w/in the nat’l legal system (4) Compliance and Enforcement: states comply for reasons of reciprocity, reputation, role/participation in global organizations ii) History of Public Int’l Law and Alternative Perspectives (p. 7-34) (1) Ancient Times: e.g. Ancient Greece - made up of city-states, had elaborate arbitration system governing disputes b/n them; employed concept of natural law (“right reasoning”); Ancient Rome – code for resorting to war (2) Middle Ages: ecclesiastical law, imperial law (HRE), feudal law – inhibited development of int’l law b/c was one big set of rules for all of HRE; developed law relating to maritime affairs (a) Lex Mercatoria – law of the marketplace (b) Peace of Westphalia (1648) – end of Thirty Years’ War; developed body of new customary rules, set up ind’l states; provided for coexistence of Catholicism and Protestantism; proclaimed principle of pacta sunt servanda (treaties are to be observed) (3) Early scholars (a) Pre-Grotius writers tended to be theologians, based int’l law on own theological viewpoints; Gentilis - writings reflected preoccupation with law of warfare during the...
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InternationalLaw--Murphy--Fall2003 - I NTERNATIONAL L AW F...

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