LLB343 Lecture Notes - Lecture 3: International Law Commission, Quid Pro Quo, United Nations General Assembly
SEMINAR WEEK 3 –
TOPIC 2 – SOURCES OF INTERNATIONAL LAW:
International law is an incomplete system of law
Development of more principles general principles of law
General principles of law:
oNatural law v international law v national law
Natural law – currently not popular
International law – very circular and not definitive
National law –
Hall argued it was an attempted to remove power from states, and look at
the community
oCommon to humanity extrapolated into international law
oEnd of WWII –
German colonies taken by the Allies, including a colony in South West Africa
Question arose as to what to do with the colony
Britain didn’t want more
Created a mandate
oArose from Grotian writings
oType of guardianship – South Africa, protecting South West Africa until
it was able to become intendent (sufficiently mature)
oLeague of Nations collapsed – South Africa claimed they did not have
an agreement with the UN
UN opposed
Issue sent to the PCIJ
oIssue – what does a mandate involve in international law
oMcNair’s finding –
International law has adopted principles from municipal law but it is
not a simple imposition
General principles should be used as indications of policies and
principles rather than applying domestic laws
oRarely used
oMay refer to customary principles or general principles
ex aequo et bono – Article 38(2) (in equity and in goodness)
oNever been used, but not irrelevant
oMay be a limitation on general principles
Is equity precluded from general principles??
Equity and the common law are fused (1873-5)
oDidn’t occur in NSW until 1970
oCombined only in procedural aspects, not substantive
oEquity developed where common law writs weren’t flexible enough to
achieve justice
Civil law – doesn’t have equity
oJudge intereprets the civil law and attempts to make an equitable
decision
Akehurst – THREE ways of incorporating equity:
oInfra legem (within law) – interpretation
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
International law is an incomplete system of law. Development of more principles general principles of law. General principles of law: natural law v international law v national law. International law very circular and not definitive. Hall argued it was an attempted to remove power from states, and look at the community: common to humanity extrapolated into international law, end of wwii . German colonies taken by the allies, including a colony in south west africa. Question arose as to what to do with the colony. Issue sent to the pcij: issue what does a mandate involve in international law, mcnair"s finding . International law has adopted principles from municipal law but it is not a simple imposition. General principles should be used as indications of policies and principles rather than applying domestic laws: rarely used, may refer to customary principles or general principles.
