1- Sources of International Law.docx - 1 Sources of International Law BACKGROUND Horizontal legal system 192 separate UN member nation states who have

1- Sources of International Law.docx - 1 Sources of...

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1. Sources of International Law BACKGROUND Horizontal legal system 192 separate UN member nation states who have equal authority/power No hierarchy or overarching authorities like federal/state division No upward authority given by the public and no downward production of law from parliament Nations are bound by international law through consent ** States have sovereignty to refuse to be bound by international law STEPS IN IMPLEMENTING PIL 1. Negotiation - Vote occurs where there needs to be a 2/3 majority for progression to adoption 2. Adoption - Text of the treaty is finalised 3. Signature - An act of good faith but it has no legal effect – carries legal effect when ratified 4. Ratification Domestic act (of nation state) expressing consent to be bound Occurs through an instrument of ratification which is lodged with the relevant international body or organisation This does NOT bring the treaty into Australian domestic law NOW the ratifying nation state is bound NOTE: if a State was not involved in the negotiation/adoption/signature of a treaty then it can only ‘ accede ’ – accession has the same legal effect but differs in this one regard
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5. Implementation Transforms the treaty into a domestic piece of legislation NOW individuals within the nation state and not just the NS itself are bound Can also be implemented through pre-existing legislation or if it only applies to Government practices (so doesn’t need legislation) NOTE: some nations do not need this stage as ratification automatically implements the treaty (Australia needs it) SOURCES: ICJ Statute Most authoritative and complete statement of the sources is in s 38(1) Statute of the ICJ 38(1)(a) gives ICJ authority to resolve disputes of international conventions (eg. Treaties ) which are expressly recognised (ie. ratified) by contesting states 38(1)(b) resolve disputes surrounding international custom (customary int. law) 38(1)(c) resolve disputes of general principles of law (Jus Cogens) recognised by nations 38(1)(d) judicial decisions and teachings of highly qualified ‘publicists’ may be used as a subsidiary means of determining rules of law Statute of the International Court of Justice - Article 38 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; b. international custom , as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; 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.
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