LLB343 Lecture 2: SOURCES of INTERNATIONAL LAW I
SEMINAR WEEK 2 –
TOPIC 2 – SOURCES OF INTERNATIONAL LAW:
Growing relations between States need to regulate relations
oJurists contemplated what system to implement
oGROTIUS –
Believed law should be based on NATURAL LAW
Pre-dominant system in EU
Predominantly catholic/Christian belief
Identified SOURCES of natural law:
a priori – source of laws: usually authoritative (eg Bible)
a posterior – involves law of other regions, which demonstrates a
recognition of good and/or evil
Theory remained relevant for centuries
oAUSTIN and BENTHAM:
Believed law should be POSITIVIST
Law is separate from morality
Binding even if it does not obey morality
Theory became accepted in the 19th century
Identified SOURCES of international law:
Treaties
Custom
Remained the dominant theory until the end of WWII
Natural law then re-emerged
Article 38 of ICJ Statute:
oOriginally the Permanent Court of International Justice (PCIJ)
oArticle 38(1) – identifies FIVE SOURCES:
International conventions and/or treaties (that the involved States are party to)
Customary law
General principles of the law of civilised nations
Judicial Decisions and teachings of the most highly qualified publicists
oArticle 38(2) –
Courts can decide a case ex aequo et bono (in fairness and in goodness) if
parties agree
Case has never been decided on this basis
Probably never will
oSubject to limitations of Article 59 –
Binding precedent does not exist in international law
Judges cannot make law
Treaties:
oMost important source of law in the 20th century
oTreaties are made by states (horizontal structure)
oBilateral treaties – comparable to a contract in domestic law
oMultilateral treaties – broad range, governs more of the population
oDo not create rights or obligations without consent
Customs:
oMost important source of international law pre-WWI
oRequires:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Growing relations between states need to regulate relations: jurists contemplated what system to implement, grotius . Believed law should be based on natural law. Identified sources of natural law: a priori source of laws: usually authoritative (eg bible) a posterior involves law of other regions, which demonstrates a recognition of good and/or evil. Theory remained relevant for centuries: austin and bentham: Binding even if it does not obey morality. Theory became accepted in the 19th century. Remained the dominant theory until the end of wwii. Article 38 of icj statute: originally the permanent court of international justice (pcij, article 38(1) identifies five sources: International conventions and/or treaties (that the involved states are party to) General principles of the law of civilised nations. Judicial decisions and teachings of the most highly qualified publicists: article 38(2) . Courts can decide a case ex aequo et bono (in fairness and in goodness) if parties agree. Case has never been decided on this basis.
