International Law 1

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Approach to a problem question

  • Is it a state? (title to territory; criteria for statehood: recognition)
  • What is the substantive wrongful act? (use of force; breach of treaty)
  • Is the state responsible for the wrongful act? (Attribution; circumstances precluding wrongfulness) 
  • What are the consequences of the wrongful act? (countermeasures; who is bringing the claim? (Legal consequences of the Construction of a Wall); diplomatic protection (English approach)
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What is international law?

  • he body of rules and principles that regulate international subjects in their relations with each other. These rules primarily regulate states, but international organisations and to an extent individuals can also bear rights and duties under IL. 
  • Created only by states
  • Binding nature based on consent to beneficial system of order
  • Judgments are only authority for a proposition, they are not binding precedent (Art 59) except between parties in respect of case concerned BUT ICJ heavily influences by past decisions. 
  • ICJ does not shape law, maps out what it is and adjudicates accordingly (e.g. Bradley state preferences account)
  • Sec Council decisions binding on UN Members (Art 25 UN Charter). Source of law = treaty obligation  as decided by decision
  • GA resolutions NOT binding on UN members but can provide evidence of custom (Nuclear Weapons – can be evidence of opinio juris)
  • Art 103 UN Charter = obligations arising under charter prevail over other treaty commitments and customary obligations of member states. Does not invalidate them, just in abeyance. E.g. Lockerbie case – arrest warrants issued by SC conflicted with Montreal Convention but warrants prevailed because of SC resolution. Art 103 also confirmed to prevail over ECHR Al Jedda(2007)
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