international law

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By Arundathie Abeysinghe Lecturer International Aviation Academy SriLankan Airlines 1 Arundathie Abeysinghe

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By Arundathie Abeysinghe Lecturer

International Aviation Academy SriLankan Airlines

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What is International Law? Set of rules generally regarded and accepted

as binding in relations between states and between nations

International Law serves as a framework for the practice of stable and organized international relations

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International law differs from state-based legal systems

International law is primarily applicable to countries than to private citizens

International Law is consent-based governance - a state member of the international community is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct

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Public International Law Law that governs the relations between or

among nations Private International Law Concerns disputes between private parties

in which the laws, jurisdiction or court judgments of more than one jurisdiction or country are implicated

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Article 38 of the International Court of Justice statute states: 1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply: a. International Conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;

b. International Custom, as evidence of a general practice accepted as law;

c. General principles of law recognized by civilized nations; d. subject to the provisions of Article 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

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“Consists of rules of law derived from the constant conduct of states acting out of the belief that the law required them to act that way”Because there are no international “laws”,

per se, countries instead behave as if there were laws to require them to behave, a certain way

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State practice Opinio juris Acts taken by a significant number of

states and not rejected by a number of states

Second element (along with state practice) necessary to establish a legally binding custom

(Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question)

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An agreement in written form between nation-states or international agencies, e.g. the United Nations

Intended to establish a relationship governed by International Law

May be contained in a single instrument or in two or more related instruments e.g. an exchange of diplomatic notes

Various terms are used for such an agreement: treaty, convention, protocol, declaration, covenant, pact, act, charter, exchange of notes, statute, agreement, modus vivendi (manner of living or practical compromise) and understanding

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Vienna Convention on the Law of Treaties defines a treaty as: “an international agreement concluded

between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

Definition applies to treaties, international conventions, international agreements, covenants, final acts, charters, protocols, pacts, accords and constitutions for international organizations

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1. For an international convention to enter into force it has to be negotiated and formally adopted at an International Conference

2. It has to be signed at the time of adoption and then opened for ratification by the State Parties Ratifications are generally deposited at the Secretariat of the United Nations

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Purpose of ratification is to ensure that the government has examined the implications of the obligations in the convention and has determined that it is in a position to comply with them

Ratification is the process by which a particular State becomes a State Party bound by the Convention

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Ratification is also the process necessary for the convention to enter into force and become International Law

The convention itself will generally provide for the minimum number of ratifications necessary for the convention to come into force

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After signing the convention, States must take into consideration the domestic requirements before ratifying the convention

The procedure to ratify an international convention differs from country to country

In every country ratification involves consideration by the Legislature, in addition to consultations among various government departments and other stake holders

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Countries can express "reservations, understandings and declarations" in cases where there are discrepancies between the international convention and domestic law

Conventions deposited with the Secretary-General represent the expressed desire of the international community to establish rights and obligations among themselves and are bound by an international rule of law

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Implementation of an international convention domestically depends on the domestic legal system of each country

A State could be categorized either as a monist state or a dualist state with regard to the implementation of international conventions domestically

Monists assume that internal and international legal systems form a unity

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In most monist states, a distinction between international law in the form of treaties, and other forms of domestic law is not made

In such states International Law does not need to be translated into national law for the purpose of application within the domestic territory and international law is immediately incorporated into the national legal system

In monist states, International Law can be directly applied by the domestic courts, and can also be directly invoked by citizens, as if it were national law

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This is different in dualist states Dualist states emphasize the difference

between national and international law and require the translation of the latter into the former

Without this translation, International Law does not exist as law within the domestic or municipal legal system

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