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PUBLIC LAW 320 EXAM NOTES - 2024

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This document provides detailed exam notes for Public law 320. It contains notes from unit 1 - Introduction and nature of international law, unit 2 - sources of international law, unit 3- relationship between international law and National law; unit 4 - international legal personality, state respo...

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  • November 9, 2024
  • 37
  • 2024/2025
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UNIT 1: THE NATURE & HISTORY OF INTERNATIONAL LAW


Public International law

• It is a body of rules and principles binding on states and other entities in relation to the other.
o It is a body of rules and principles – general and particular rules.
o It operates and binds on states – not individuals BUT some bind legal personalities.
o Regulates states relationship with each other – some bind relationship of state with
individuals (e.g., International human rights law).
• It is the body of law which states feel themselves bound to observe, and therefore, do
commonly observe in their relations with each other.
• It regulates states in all their myriad forms from wars to satellites and institutions.
• There is no one definition – the definition is universal.
• It`s an entity possessing international rights and obligations and having the capacity
(International Legal Personality):
o To maintain its rights by bringing international claims
o To be responsible for its breaches of obligation by being subjected to such claims.”
• It doesn’t have hierarchies (judicial, legislative or executive) & central legislative body binding all.
o No one can force a state to abide by international law
o There is no single body of public international law.
• There is no court with compulsory jurisdiction in international law
o International courts that have the competency to hear certain legal disputes
▪ This competency is limited to certain matters only.
o International Criminal court can hear crime of genocide, humanity crime, war &
aggression. The state parties to the dispute need to consent before court can hear.
• Modern International Law is based on premises of sovereign state.
History developments of international law

• Father of International law is Hugo De Groot.
• International law derives from Egyptians, Jews, Greeks, Muslims & Romans during Medieval
times (Middle Ages)
• It is the Jurisprudence of interstate practices of the Muslim world.
• Is International Law really law?
o John Austin`s Command Theory: International law is not law but a sanction
o Fredrick Pollock Theory: international law is law & enforced because it is binding
recognized by international and municipal courts and by statesmen in their daily inter-
state dealings.

, NATURE OF INTERNATIONAL LAW

• International law is not binding automatically on state, the state agreed on them to be bound
o If they do not follow after agreement, the sanction is imposed by Security Council.
• Public International Law is not about relationships between the states (international relations) -
it is about the law and the principles of international law
o Foreign law is the law of another state – this is not international law
SUBJECTS OF INTERNATIONAL LAW
States & Intergovernmental Main actors in international law community & are subject to international law.
organizations International law is made predominantly & implemented by states.
States
• International legal personality is only on states.
• An exception exists if there`s the right to possess international rights and
duties and to be able to enforce them
Intergovernmental organization
• They are partially bound in international law & state-by-state.
• E.g., League of Nations, United Nations, World Bank & IMF.
• Reparation for Injuries Suffered in the Service of the UN Case -UN is a subject
of IL & capable of possessing international rights and duties. UN has capacity t
maintain its rights and duties by bringing international claims.
Individuals Cannot be described as full subjects of international law BUT are beneficiaries of IL.
• They benefit protection of IL & participate in its protection
Multinational corporations Subject to national jurisdictions in which they are incorporated BUT not IL.
They engage in international transactions with states & developed rules for states.
There’s a movement within international legal responsibilities which pushes for
corporate social responsibility of these MNCs, and also for the MNCs to be held liable
for human rights violations


• Public international law is not:
o An international comity – which the legal non-binding practices that may be adopted by
states by way of courtesy (e.g., Saluting flags of foreign warship at sea)
o International morality – A branch of ethics
o Private international law (conflicts of laws)– which concerns itself with the relationships
between individuals whose legal relations are regulated by the laws of different states.
TYPES OF INTERNATIONAL LAW
Global (General) International law International law valid for all or large number of states
Regional International Law Law applies to a region subscribes to due to distinctive values shared
General rules Rules applicable to a broader range of situations
Particular rules Rules specific to two or few states to a situation.

, INTERNATIONAL LAW MUNICIPAL OR NATIONAL LAW
Differences
• No legislature exists. • Legislature exists.
• No compulsory court structure, no system of precedent. • Developed judiciary precedent doctrine (common law)
• Regulates the state interaction with each other. • Regulates between people, ruling authority and people.
▪ Subject to states generally. ▪ Subject to individuals or legal persons
• No executive to enforce judgments - a poorly developed. • Full executive machinery for the judgment enforcement
• It is a decentralized system • It is a centralized system
• It is a horizontal system – lawmakers & subject are same. • It is a vertical system - law is imposed from above
Similarities
Has accepted norms which prescribe the behavior of states Has accepted Norms which prescribe behavior of juristic person
• Uses writings of Jurists & Inter. Tribunals decisions as • Uses writings of Jurists & precedent is freely used as we
opposed to morality as morality
• It can be altered by a treaty • It can be altered by statute


There exist sanctions in PIL:

• Use of force; Economic sanctions & Punishment for international crimes.
• Exclusion from membership of international organizations;
• Expulsion of diplomatic representatives / nationals;
Fragmentation of International law

• It is the diversity of international law norms and rules that arise from international law.
• It is international dispute mechanism and bodies that settle disputes unique.
• These norms and rules are not all uniform in their origin and they are separate and overlap.
• General rule of international law remains intact despite fragmentation & provide them
framework
• They threaten the universality and undermines international law
o E.g., The sea law, Humanitarian law, World Trade Organization for Trade
THEORIES OF INTERNATIONAL LAW
Natural Law Based on formalistic and logical hierarchy.
Considers international law and domestic law to be of the same legal order
International law prevails where there`s conflict
Positive law Domestic law prevails where there is a conflict
This theory stresses the differences between inter-state relations & intra-state relations
Considers international law & domestic law separate legal orders which fall back on the state sovereignty supremacy

, APPROACHES TO INTERNATIONAL LAW
Traditional Approach It is consent-based contractual international law and sovereign equality (pacta sunt servanda)
It focuses on the state as a key subject and actor in international law.
• focuses on the normativity of international law distinguishing between soft law & hard law.
o response to the view that international law is morality and not law at all.
o Soft law is law without sanction.
Critical Approach They revisit the history of international law & challenge notion that IL is universal
They outline that IL is Europeans supremacy to non-Europeans – ‘duty’ to civilize & control non-Europeans.
o International Law – weapon to spread Eurocentrism – a pinnacle for human civilization.
o International Law promotes imperialism and is gender biased with women oppression.
Feminist theory
• Human Rights Law
o gender-neutrality was problematic – did not consider that the harm by women.
o Exposes gendered nature of law & how it may disproportionately affect women.
o acknowledges the underrepresentation of women
o Est. (1) Vienna Conference on Human Rights & (2) Declaration on Elimination of Violence
against Women in 1993
• International Criminal Law
o ICTY & ICTR recognizes sexual violence as war crimes; crimes against humanity & genocide.
o The Rome Statute of ICC also incl. gender-based violent crimes.
• Redress the virtual exclusion of women from the most prestigious international positions and to
bring women into influential policy and decision-making bodies
o Art 36(8)(a)(iii) of Rome Statute – fair representation of female and male judges.
• Gender-mainstreaming
o involves integrating concerns of gender into all the activities.
o spreading responsibility for gender issues throughout the organization
TWAIL (Third World Approaches to International law).
• It originates from a decolonization movement (incl. Matua, Angie & Gathii)
• It re-examines & challenges the historical foundations of International Law.
▪ redress and present an alternative structure for international law.
▪ improve the internal transformation of conditions within the third world.
• It advances a move away from the dominant Eurocentric vision of international law.
• 3 objectives of TWAIL
▪ Understand, deconstruct and unpack use of International Law.
▪ Construct & present alternative normative legal structure for Inter. governance.
▪ Seeks to eradicate underdevelopment in 3rd world by scholarship, policy & politics.
• Characteristics of TWAIL
▪ It is antihierarchical: Reject notion of othering & universalization.
▪ It is counter hegemonic
▪ It is suspicious of universal creeds and truths
▪ It is a coalitionary movement

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