1: Nature of International Law Flashcards
Public international law:
law that operates among sovereign states - uniform and autonomous system of norms.
States:
are objects and main actors in international law - they have legal capacity, sovereignty, create CIL, bind themselves to treaties.
Other actors:
- International organisations
- non-governmental organisations
- juridicial (private entities)
- individuals (human rights, criminal law)
- courts and tribunals
How does international law progress?
Through:
- treaty development
- domestic jurisdiction
- erosion of national barriers
Legal character of international law:
positivist would not regard it as ‘true law’ does not originate from a sovereign and is more of a morality code.
however, states consider it law.
does influence state actions, regulates technology, use of force.
but, does lack an enforcement mechanism.
ICJ statute:
Art 38(1): the court shall apply -
a. international conventions recognised by states
b. international custom as evidence of general practice as law
c. general principles of law
d. judicial decision, highly qualified publicists - subsidiary means.
Customary International law:
“international custom, as evidence of a general practise accepted by States as law” Art 38(1).
2 elements of CIL: state practice + opinio juris.
State Practice:
evidence of what states are actually doing.
objective element - actual conduct.
e.g. speeches by officials, parliamentary proceedings, domestic legislation, court decisions, diplomatic correspondence, military actions, treaties.
Contrary State Practice:
Can look to other states behaviour: may weaken a rule if other states show no acknowledgement of it in their practice.
do not need perfect conformity, but ‘general.’
greater weight given to specifically effected States.
can also be persistent objections.
