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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 Intl 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 intl law (a) Restatement 102 (i) A rule of intl law is one that has been accepted as such by the intl community of states 1. in the form of customary law; 2. by intl agreement; or 3. by derivation from general principles common to the major legal systems of the world (ii) Customary intl law results from a general and consistent practice of states followed by them from a sense of legal obligation (iii)Intl agreements create law for the states parties thereto and may lead to the creation of customary intl 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 intl agreements, may be invoked as supplementary rules of intl law where appropriate. (b) ICJ Statute, Art. 38 lists 4 sources of intl 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 intl law is directly applicable and binding within its national legal system (intl law automatically becomes natl law) (b) Dualism practice of states wherein intl law must be expressly incorporated by some action (i.e. enacting statute) to be binding w/in the natl legal system (4) Compliance and Enforcement: states comply for reasons of reciprocity, reputation, role/participation in global organizations ii) History of Public Intl 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 intl 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 indl 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 intl law on own theological viewpoints; Gentilis - writings reflected preoccupation with law of warfare during the...
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