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Public International Law

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  Public International Law Summary 2001 Creation and Ascertainment of International Law Sources of International Law -int  l law governs actions between states and represents the laws that they have voluntarily assented to through conventions, treaties or by usages generally accepted as expressing principles of law established in order to regulate the relations between coexisting legal communities with a view to the achievement of common aims Statute of the International Court of Justice Article 38: Court shall apply: a) international conventions expressing rules accepted by states b) international custom as evidence of a general practice accepted as law c) general principles of law recognized by civilized nations d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of the rules of law 2. The provision shall not prejudice the power of the Court todecide a case ex aequo et bono if the parties agree thereto -Article 59  decisions have no binding force except for the parties to the dispute -Article 38(1)  in order for the court to accept any rule of int  l law it must fall under either a, b or c -38(1)(d)  judicial interpretations and opinions of scholars are evidence by which the rules of int  l law are determined -the rules that emanate from the law creating processes in Art. 38(1) are hard law there is a second category of law known as soft law that is not binding eg: Helsinki Accords  this soft law is a general code of conduct for states and though not binding is persuasive and can often lead to the formation of binding international customs Conventions: involve multiple states Treaties: generally only involve a few (1,2,3)   Rules of Custom are created by: 1) actual state practice-must be consistent, general and virtually uniformly adopted 2) Opinio juris  legal obligations where a state has acceded in a practice for a substantial period of time without protest 3) General principles of law recognized by civilized nations -ICJ does not follow stare decisis but they use judicial decisions for comparitive analysis to interpret treaties, identify state customs and judicial opinions -if the parties have agreed to a set of rules to go to an arbitrator, such an arbitrator can decide the rules based upon principles of justice and fairness -where there is a treaty, it governs -where there is none, custom governs -where there is one treaty state and one non treaty state, custom governs English Channel Arbitration  (UK v. France) (1977) PRINCIPLE: Where there is a treaty that has been changed over time by customs, that treaty can be superceded by custom if both disputing parties have adhered to the custom  -however, this case did not allow that to happen -the treaty in question was the Continental Shelf Convention of 1958 and the Court found that there was nothing to show that it had been superceded -treaties often include cofifications of custom  does the treaty or the custom supercede? Military Activities In and Against Nicaragua [1986] ICJ PRINCIPLE: operation of treaty process does not deprive international custom of its separate applicability -reason for this is that if one party breaches a part of the treaty that is fundamental and the other party seeks to treat the treaty as repudiated, the laws of custom will still bind Article 43 of Vienna Convention on the Law of Treaties: Invalidity, termination or denunciation, withdrawel or suspension of operation does not affect the parties obligations in international law independent of the treaty Treaties -there is a distinction between law making treaties and treaty contracts -law making treaties are generally those accepted by a number of states eg: 1961 Vienna Convention on Diplomatic Relations -treaty contracts create special rights by operation of the principle of pacta sunt servanda which are akin to private law contractual rights -treaties codify, define, interpret or abolish existing customary international law or create new rules for future conduct -through the negotiating process treaties push states towards custom and opinio juris -treaties may become obsolete or partially obselete if customs or opinio juris change -treaties only bind states that are signatories but states can bind themselves by declaring themselves so bound  -once a rule of custom is identified it can be used against all states that do not protest to the practice Vienna Convention On the Law of Treaties  adopted in 1969 and Canada is a party -codification of customary international law on interpretation and application of treaties -U.S. not a party but the state dept. has said that it is a codification of custom Articles 2 & 3: I) parties must be subjects of international law ii)they must intend to create binding relations under int  l law iii) their agreement must be governed by int  l law Anglo-Iranian Oil Company Case-contracts between private entities and states do not create binding arrangements between the private entity  s national gov  t and the state -the presumption that two parties who sign written agreements have a treaty can be rebutted by evidence of intention to the contrary eg: Helsinki Accords, memoranda of understanding (low level agreements of an administrative character) -treaties are generally written but there is nothing to stop states from making an oral agreement if the intent to bind is clear  Legal Status of Eastern Greenland Case (1933) Nuclear Test Ban Treaty-Australia and NZ took France to court over testing in the South Pacific  France was not a party to the Nuclear Test Ban Treaty and had not consented to be bound by it -where there is no treaty obligation and parties consent to arbitration they may go -where states make a unilateral declaration as to their intention to be bound by a treaty they may be so bound
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