INTERNATIONAL LAW

INTERNATIONAL LAW - www.swapnotes.com INTERNATIONAL LAW I...

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INTERNATIONAL LAW I. APPLICATION OF THE LAW OF THE INTERNATIONAL LAW SYSTEM Int’l law? One view: no because no legislalute making law, no judiciary interpreting it and no police force enforcing it. Other view: look to see if functions exist: a) lawmaking; b) interpreting, and c) enforcement Sources of international law . No int’l legislature in UN – UN charter gave no authrotiy to GA to make binding law (except its own budjet): only recommendations. Security Council has authority to pass binding resolutions, but only if finds breach of/threat to peace or act of aggression. Summarizing sources of int’l law: Article 38 of ICJ (ICJ established with UN: all states are parties to statute, but states have to agree to accept its jurisdiction ; US accepted, but withrdrew acceptance in 86; court can decide cases if both parties accept jurisidiction to the cases; can only decide cases states against states, and advisory opiinions for various int’l orgs; can’t decide cases on individuals ). Article 38 (Statute of ICJ) – ICJ to apply in deciding: a) int’l conventions/treaties (like contracts domestically); b) int’l custom accepted as law (customary int’l law, not useage or custom such as state dinners, etc.); need 1) practice by large number of states over a period of time and 2) done in belief there is an obligation to do it; evolves over time; where do you find it? Most int’l law is customary law, even treaties depend on their existence on customary law c) general principles of law recog by civilized nations (e.g., right to legal process, impartiality of trier of fact); d) subject to art 59, judicial decisions/highest teachings of publicits of various nations as subsidiary means (not source of law, but subsidiary) (judicial decisions and law revue articles, etc.— in US, judicial very important, publicits, not very important) (Based very much on civil law) [“a”-“c” not hierarchy, but “d” is less important.] Today, opinions of ICJ are citied like SC decisions by other int’l tribunals If treay is not ratified by all, say it is customary law, so can invoke against nations not ratifying , or allows nations to accept parts of treaty without accepting all. Treaty can be codification of customary law (e.g, Vienna Law on Treaties) Customary Law – 2 elements: practice and legal obligation (opinio juris – act is necessry by rule of law, legal obligation) Is state bound by customary law when state didn’t exist when law was created? Argument that they aren’t, since didn’t’ create, but counterargument says once come into existence, must be bound by it. Latter has prevailed. Regional custom exists in regions (e.g., sharing water resources) – in this case, must show affirmatively that state accepted custom to be bound, whereas in general customary, are bound once comes into existence. Treaties and contracts are based on consent. Jus Cogens
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INTERNATIONAL LAW - www.swapnotes.com INTERNATIONAL LAW I...

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