Final Exam Notes

International Law

sources and subjects distinguish international law from common law

Private international law Torts, family, corporate casesbut with one party
residing elsewhere -> cannot be dealt with domestically
Public international law the body of roles and principles of action which are
binding upon civilized states in their relations with one another (Brierly, the
law of nations, 6th ed, 1963 at 1)
1609 birth of international law
Mare Liberum first school of thought free seize
Mare Clausum second school of thought closed seize
Hugo Grotius state could own land mass and an adjacent narrow land of
water
Welwood and Seldon mare clausum written in response ^ eventually lost all
support
No state showed any attempt to own high seas mare liberum
Treaty of West Phalia 1648 creation of modern European state
- Combined with mare liberum underpinnings of modern international law.
193 states - state sovereignty barrier to international law as West Phalia =
equality of law (horizontal structure). -> however there has been
development in a number of areas regarding enforceability -> enforcement
provisions included in treaties
UN treaty based international organization
UN purposes - To maintain international peace and security
- develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples
- achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character
UN principles - the Organization is based on the principle of the sovereign
equality of all its Members.
- All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
- Nothing contained in the present Charter shall authorize the UN to
intervene in matters which are essentially within the domestic jurisdiction
of any state.
UN organs Tier 1 General Assembly, a Security Council, an Economic and
Social Council, a Trusteeship Council, an International Court of Justice and a
Secretariat. (article 7)
Tier 2 (autonomous/specialized UN agencies) International maritime
organization, international labor organization, world meteorological
organization, international monetary fund, World Bank. (16 not subsidiary
organs, created by their own treaty, states become party by ratifying treaty)

Tier 3 everything else

Regional organizations most prominent is European Union
Turning Points 1920 League of Nations, 1945 United Nations
20th Century increased number of states decolonization, changing balance
of interests
193 states newest South Sudan

Sources of International Law

Article 38 statute of international court of justice directive to the judges of

the court
- Legally binding sources hard law
The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
- International conventions - whether general or particular, establishing
rules expressly recognized by the contesting states. Treaties global,
regional, bilateral, etc. International contract.
- International custom - evidence of a general practice accepted as law.
Unwritten law, based on conduct of states, continued practice makes it
legally binding. State practice (physical element) + opinion juris (mental
element)
- General principles of law recognized by civilized nations primarily
domestic law systems e.g. negligence, vicarious liability.
- 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 dont create the law but help
interpret ^ - cleans ambiguity.
Soft law sources usually created because theres not enough political will to
make it a treaty. Guidelines.
- Resolutions of international organizations except security council.
- Framework conventions UNFCCC
- Declaratory conventions Stockholm decleration 1972, Rio declaration
1992. Usually not legaly binding.
- Codes of practice Industry specific
- Form legally binding rues.
Treaty making process negotiation
- Adoption
- Signature
UNCLOS 1982
- Ratification
implementation bring it into
domestic law
- Entry into force
Jus Cogens top pinnacle of humanity
- Max point of customs
- Genocide, crimes against humanity (slavery, human trafficking), war
crimes, crimes of aggression
ICJ 1969 Germany v Denmark
- Germany v Netherlands

Convention of the Continental Shelf (1958)

Act 6 Equistisance principle rule of treaty
- Germany wasnt a part of ^ therefore not applicable to Germany.
Elements of custom IL is said to be consentual
Persistent objection only way to not be bound

Subjects of International Law

Primary subjects nation states

International organizations states operating collectively
International Legal Personality ability to involve self in treaty process
- Ability to sue and be sued in international law
Until 1949 ILP = statehood
After 1949 >(or equal to ) statehood
Statehood and recognition the state as a person of international law should
possess the following qualifications: (a) a permanent population (b) a defined
territory (c) government (d) capacity to enter into relations with the other
states.
International community recognizing that you have met criteria to be
classified as a state
- E.g. Taiwan limited recognition as a state but higher recognition as a
trading partner.
- E.g. Hut River Province failed attempt to be a state in Western Australia.
Recognition IO part of treaty?
- Sue and be sued
- If it requires ILP to carry out functions then its inferred (read it in)
Individuals ICCPR ratify first optional protocol
- Protest for protection of rights in the human rights committee

Subjective elements:
Recognition from the international community that the new state has fulfilled the
objective qualifications (recognising the creation of the state). countries may still
not recognise new state even if objective qualifications fulfilled .e.g Taiwan from
China, pre 1972 highly recognised, but then post 1972 (after cultural revolution)
Taiwan was having low recognition. e.g. Palestine, does not have a defined territory
and government is controlled by Hamas (not centralised). Setting up a treaty with
the new state (states are careful with Taiwan when signing treaties to not recognise
their sovereignty).Guidelines about subjective recognition (Eastern European and
Soviet Union guidelines): about trying to create some legitimacy within the newly
formed state.