Lecture 3.doc

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24 Apr 2012
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Lecture 3: 09/29/10
Sources of International Law
Good sources/lame sources (not all sources are created the same)
The best jurisprudential sources are Supreme Court decisions rendered yesterday
(the more the recent the better)
The ICJ is the monster source for international law cases
- The Statute of the International Court of Justice, as part of the Charter of the
United Nations, defines the sources of international law under Article 38
The ICJ is a monster source because:
a) All the countries in the world (relevant actors) have bought into this court by
ratifying the UN
b) There is no higher court
c) It is a convention
*In the exam, make reference to the ICJ statute
The sources of international law are as follows:
(1) Conventions/treaties
(2) Customs (customary international law)
(3) General principles of law (of civilized states*)
*civilized means liberal democracies essentially
*general principles of law include both domestic and international
*a domestic principle of law not accepted as an international principle of
law is not a general principle of law.
The monster source of treaty law is the Vienna Convention
- It is also considered a monster source because states in practice accept it as
international law (ratified)
Minutes Case (the treaty was entrenched in writing)
However, usually, a treaty must be signed
Only 1% of international law cases go to the ICJ (only states can go to the ICJ and both
parties much agree)
Under the Vienna Convention, only states can become party to treaties
- IGOs can sometimes but rarely and it’s a different process
If you agree to a treaty, you are bound by it, but if you don’t sign on, you are not
obligated
Ratifying treaties is a two-step process: they must be signed then ratified:
- The federal government starts the process; it must then be passed in
parliament
Royal fiat never gets the last word
Authority comes from observing the treaty in good faith
Article 38 (General principles of law)
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the carious nations, as subsidiary means for the
determination of rules of law
- Why supplementary?
**this is all pretty circular
Is international law binding? No, not de facto binding. It is binding legally, but not very
enforceable.
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