International Law Notes
International Law Reading Notes:
Ch. 3: Sources * There is no single body to create laws internationally binding upon everyone nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. * Sources: provisions operating within the legal system on a technical level * Reason and morality are excluded as well as functional sources * Survey of process whereby rules of international law emerge * Article 38 of the Statute of the International Court of Justice is an authoritative giver of sources * Sources are derived from: * International conventions (general or particular) establishing laws expressly recognized by states * International custom: general practice accepted as law * General principle of law as recognized by nations * Judicial decisions * Custom: substance must be looked for in the actual practice and opinion juris of states * Opinion juris sive necessitatis: an opinion of law. Belief that an action was carried out because it was a legal obligation. * Developed by Francois Geny * Difficult in proving increasing reference to conduct within IO, such as content of resolutions and condition of adoption * Duration, consistency, repetition, generality (Dead chickens rot green) * Instant customary law is possible when opinion juris is clearly established even if repetition is not * Some states are more influential than others, this is reflected in that custom may be created by a few states * Failure to act can arise from a legal obligation or an incapacity/unwillingness to act * Abstention could give rise to recognition to custom if it is consciously done. * In other words, intentional silence is acquiescence * Acquiescence: tacit recognition manifested by unilateral conduct which the other party may interpret as consent and as founded upon the principles of good faith and equity *
Ch. 3: Sources * There is no single body to create laws internationally binding upon everyone nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. * Sources: provisions operating within the legal system on a technical level * Reason and morality are excluded as well as functional sources * Survey of process whereby rules of international law emerge * Article 38 of the Statute of the International Court of Justice is an authoritative giver of sources * Sources are derived from: * International conventions (general or particular) establishing laws expressly recognized by states * International custom: general practice accepted as law * General principle of law as recognized by nations * Judicial decisions * Custom: substance must be looked for in the actual practice and opinion juris of states * Opinion juris sive necessitatis: an opinion of law. Belief that an action was carried out because it was a legal obligation. * Developed by Francois Geny * Difficult in proving increasing reference to conduct within IO, such as content of resolutions and condition of adoption * Duration, consistency, repetition, generality (Dead chickens rot green) * Instant customary law is possible when opinion juris is clearly established even if repetition is not * Some states are more influential than others, this is reflected in that custom may be created by a few states * Failure to act can arise from a legal obligation or an incapacity/unwillingness to act * Abstention could give rise to recognition to custom if it is consciously done. * In other words, intentional silence is acquiescence * Acquiescence: tacit recognition manifested by unilateral conduct which the other party may interpret as consent and as founded upon the principles of good faith and equity *