Introduction
Public International Law is known to be a set of rules and norms generated and set by sources that are ought to be read, accepted, recognised, and signed by all states, and used as a boundary between these states. This essay will analyse the different sources of Public International Law, and identify their strengths and weaknesses, and how they differ from the sources of Law made and implemented in Australia’s law system. Sources of law are basically the origin or authority by which rules and legal force is derived and implemented or enforced.
Sources of Public international Law
Public International Law was created to develop a friendly, peaceful, secure environment for the state and to prohibit wars between those states. Sources
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Moreover, different norms and rules of different territorial states may contradict and cause problems between them. However some scholars say it is a solution for the consequences that may be caused to a nation from another nation. Another advantage of customary international law is that even if it has been existing for a very long time, it is still being practiced by many different states universally. Customary international law is not prioritised in any way over the treaties, instead they both co-existed. The third source of public international law is the General Principles of law, which is mainly based on the basic ‘natural law’, meaning the normal law that nature enforces on us simply stating what is wrong and what is right, and its main objective is equality and justice. Nations that practice this type of law are called the ‘civilised nations’ as it was mentioned in the UN charter, article 4. The fact that it is valid to all different societies, and communities is counted as an advantage for the general principles of law. The general principles of law is usually …show more content…
It is derived from passed legislation. Common Law was first founded in England, and practiced mostly in english-speaking countries. A Common Law system is a system basically formed from old or precedent opinions and decisions of judges in higher courts rather than a parliament, which becomes law, or a role model for all other cases in other lower courts. Sometimes to much of restriction to precedent cases can result in a wrong or unjust decisions. The sources of law in public international law are not really different from judge made law in common law countries, because common law compared to the sources of public international law implements legislation, provides stability and consistency in the legal system, is flexible and allows changes in the law rules, and faster in response than law made by the parliament. However it is very strict, principle-based, not democratic as it is set by the judges in the court rather than the people, and legislation can easily override it anytime. So basically common law is very similar to the customary international law for example, since it is the law made by judges that take decisions through precedents, where lower courts refer to higher courts, and customary international law is an old set of rules and norms obligately enforced by a state on its individuals’ behaviour. So they are both flexible systems that depend on old and
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
Legal system is a comprehensive term that is used to confirm the existence of the law; it also explains the law-making process and how this is enforced on everyone. The Australian legal system regulates all level of governments, organisations, and all people whether they are Australian born or have migrated here, and they must obey Australia’s regulations. The legal system here was developed from the United Kingdom’s legal system, as Australia was a colony of the British. At a glance, the British government granted restricted rights to their colonies, including Australia to set local government system. This was intended to developed laws in local area, also to deal with specific situation at that time. As a result, the legal system in each of the colonies started to develop separately. According to Carvan J (2010) the Australian law is adopted from several sources, including the rules of equity, parliamentary laws, delegated legislations, judge-made laws, and international laws. (Austrlian Legal System, 2007)
Common law is the concept that some of the core principles that form the basis of the English legal system come from judges as opposed to Parliament, with rulings from case to case developing predicedent, which forces lower courts to follow princaples set by higher cores but allows higher courts to overrule the descisions of lower courts. This allows the courts, over time to refine law. The courts can even decide to ignore rulings when considering to set it as precident with enough justification, this allows rooms for special cases. As a drawback to common law, the courts are sometimes unwilling to overrule long standing precidents. Slapper,...
The League of Nations has been seen as a seriously flawed international organisation and its failure to prevent World War Two has been well documented. Provide something of an alternative perspective by identifying and highlighting important policy-areas in which the League made valuable progress.
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
International law is a body of legally binding rules that are suppose to govern the relations between sovereign states. (Cornell Law School) In order to be a qualified subject, a state has to be sovereign. To be considered sovereign the state needs to have territory, a population, and a government that is recognized or legitimized to most other states. In the more modern explanation of international law now can include the rights and obligation on intergovernmental international organizations and even individuals. Examples of an international organization would be Greenpeace or the United Nations and an example of an individual would be war criminals, a leader of a state that violated human rights during a time of war. When a dispute arise and cannot be solved amongst the two actors involved they can turn to the U.N. to arbitrate and to the International Court of Justice, one of many courts within the U.N. to find a resolution to their problem. The International Court of Justice’s main task is to help settle legal disputes submitted to it by states and...
In any kind of legal relations, subject always play an important role, and it is one of the signals to determine the relation that pertaining the adjustment of any legislation system. International law is a legislation system that is a set of thousands of documents from various sources. The research about the subjects is necessary since it helps to find out the source of law, which relation pertains the adjustment of law. The subjects of international law include sovereign states and analogous entities, intergovernmental organizations, the individuals, and multinational corporations.
With World War One coming to an end, all of the major world power leaders met for the first big peace meeting. President Wilson had come up with the idea that he thought would become the start of everlasting peace throughout the world. He called it his Fourteen Points, and believed that they were brilliant. Others, however, thought otherwise and were skeptical of these Fourteen Points. Much so that a lot of these points were never even put into use. Wilson surrendered many of his points in order to pass what he thought was the best shot for world peace: his fourteenth point, or better known as the League of Nations. The League of Nations was a committee of nations that promoted worldwide peace and cooperation with one another. It was intended to be an international group discussion designed to talk about diplomatic crises like the ones that provoked the First World War. The League of Nations was indeed one of the best options for maintaining peace and preventing war at the time. It was a must for the United States to join.
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
Every nation has their own set of legal strategies they use to guide them in making important decisions. Each nation has its traditions and policies they follow. Through the world, there are two main types of legal systems that are used; most nations follow either common or civil law. Both the common law system and the civil law system share similarities in having courts, judges, and comparing cases to laws. While both systems share similarities, they also contain many differences, making them two very divergent legal systems.
The study of international relations takes a wide range of theoretical approaches. Some emerge from within the discipline itself others have been imported, in whole or in part, from disciplines such as economics or sociology. Indeed, few social scientific theories have not been applied to the study of relations amongst nations. Many theories of international relations are internally and externally contested, and few scholars believe only in one or another. In spite of this diversity, several major schools of thought are discernable, differentiated principally by the variables they emphasize on military power, material interests, or ideological beliefs. International Relations thinking have evolved in stages that are marked by specific debates between groups of scholars. The first major debate is between utopian liberalism and realism, the second debate is on method, between traditional approaches and behavioralism. The third debate is between neorealism/neoliberalism and neo-Marxism, and an emerging fourth debate is between established traditions and post-positivist alternatives (Jackson, 2007).
Since the late twentieth century, the world has experienced a vast transformation with regards to world economies, culture, and politics. The great advancements in technology and communication since the late twentieth century has served a catalysts for what is known today as globalization. The ambition to develop a single global economy along with a universal culture are the promises of globalization. Perhaps the clearest evidence that demonstrates globalization is a reality is the fact that at this point in time very diverse cultures form around the world closer to each other than ever before. That being said, when it comes to the spreading of democracy and human rights, having world cultures closer to each other can prove to be beneficial
Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong and how we, humans, should act to achieve a peaceful society while enjoying individual freedoms. The key to a successful nation is a firm, strong, and fair code of high laws that provides equal and just freedom to all citizens of the country. A strong government is as important as a firm code of law as a government is a backbone of a country and of the laws. A government is a system that executes and determines its laws. As much as fair laws are important, a capable government that will not go corrupt and provide fair services holds a vital role in building and maintaining a strong country.
The international law is the fundamental basis of sovereignty and equality of all states. It promotes peace, order, and justice to the international society. The effectiveness of the international law is also anchored to the international community whether they will follow or not. It is important that international community has rules and obligation to follow in order to prevent chaos in the society. The development of international law led to the understanding of different policies and sanctions for the states. It deals with conflict of the states to relieve destructive conflict. The international law is agreed upon by the international community but there is no enforcing body unlike in the domestic law. State has been relying to treaties and international agreements for the prevention of war.