CHAPTER 1: The Nature of International Law International law a body of rules and principles of action which are binding

g upon civilized states and their relations to one another. -deals with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. Is international law a law? There are conflicting views. NO: no international legislative body, no international executive, no central authority that can make judgments binding on states, national officials find justification in everything they do, etc. YES: because of social interdependence and predominance of general interest. States are bound by many rules not promulgated by themselves. Theories About International Law: 1. Command Theory law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed. -international law is not a law bec. it does not come from a command of a sovereign 2. Consensual Theory international law derives its binding force from the consent of states. e.g. Treaties and custom are expressions of consent 3. Natural Law Theory law is derived from the nature of man. International law is an application of natural reason to the nature of state-person.

Public International Law referred to as international law ` -governs relationships between and among states and also their relations with international organizations and individual persons. Private International Law- known as conflict of laws -really a domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts CHAPTER 2: The Sources of International Law Formal sources- refer to the various processes by which rules come into existence. e.g. legislation, treaty making, and judicial decision making Material sources not concerned with how rules come into existence but rather with the substance and content of obligation. -identify what obligations are. e.g. traty, UN Resolutiions, judicial decisions, state practice, etc. According to Art. 38 of Statute of the International Court of Justice: a. International Conventions, whether general or particular, establishing rules expressly recognized by contesting states b. International customs, as evidence of a general practice accepted as law c. general principles of law recognized by civilized nations

d. subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. According to the Restatement (Third) of Foreign Relations Law of the United States: 1. A rule of international law is one that has been accepted as such by the international community of states a) in the form of customary law; b) by international agreement; or c) by derivation from general principles common to the major legal systems of the world. 2. Customary international law 3. International agreements 4. General principles common to the major legal systems *Briefly, the sources of international law are custom, treaties and other international agreements, generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists. A. Custom or Customary Law - a general and consistent practice of states followed by them from a sense of legal obligation -2 basic elements of custom: material factor (how states behave) and subjective factor (why they behave the way they do) -Material Factor: elements: duration, consistency, and generality of the practice of states *duration can either be long or short. therefore, it is not the most important element. *more important is the consistency(continuity and repetition) and the generality(uniformity need not be

complete; substantial is enough) of the practice -Opinio juris: belief that a certain form of behavior is obligatory. It is what makes practice an international rule. Without it, practice is not law *Dissenting states would be bound by custom unless they had consistently objected to it while the custom was merely in the process of formation *After a practice has been accepted as law, contrary practice might arise which can cast doubt on the alleged law *Instant custom: not the product of constant and prolonged practice. A spontaneous activity or a great number of states supporting a specific line of action. B. Treaties - either bilateral or multilateral - determine the rights and duties of states just as individual rights are determined by contracts. - their binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior - number of the contracting parties and the generality of the acceptance of the rules created by the treaty can have the effect of creating a universal law *WON treaties override custom depends on the intention of the parties. If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law. *If a treaty comes later than a particular custom, as between the parties to the treaty, the TREATY should prevail (bec. treaty manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be followed).

*If a later treaty is contrary to a customary rule that has the status of jus cogens, custom will prevail. **A treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general international law (is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. C. General principles of law recognized by civilized nations - common to the worlds major legal systems - has reference to principles of municipal law common to the legal systems of the world -evidence of the fundamental unity of law. D. Judicial decisions -subsidiary means for the determination of the rules of law BUT is made subject to Art. 59: decisions of the court have no binding force except between the parties and in respect of that particular case. E. The teachings of highly qualified writers and publicists -Publicists: institutions which write on international law. F. Equity -is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice -has both procedural (mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair) and substantive aspect. -kinds of equity: intra legem (within the law; law is adapted to the facts of the case),

praeter legem (beyond the law; used to fill the gaps within the law, and contra legem (against the law; refusal to apply the law which is seen as unjust.)

Other supplementary evidence: *UN Resolutions *Soft Law or non-treaty agreements; international agreements not concluded as treaties and not covered by the Vienna Convention on the Law of Treaties. - plays an important role in the international relations bec. often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations.