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‘International Law Is Not Imposed On States – There Is No International Legislature.’ (Wallace, R.M. (2005) International Law, 5th Ed, Sweet & Maxwell)

2388 words - 10 pages

i. ‘International Law is not imposed on States – there is no international legislature.’
(Wallace, R.M. (2005) International Law, 5th ed, Sweet & Maxwell)

When looking at this statement it is important for one to consider the concept of International Law and how this idea differs from the domestic legal order. Ascertaining the law on any given point within the domestic legal system is not usually a difficult process. In the US, for example, one will look to see as to whether a certain legal matter is covered within their codified constitution and through law reports view how similar matters were interpreted by the judiciary. However, when this method is compared with that of ...view middle of the document...

(Adapted from Malcolm. M. Shaw, 2003, Chapter 3). Nonetheless what does become clear, when one looks at custom as a source of international law, is that it does impact on sovereign states with the International Court of Justice (ICJ) acting as the judicial arm of international law. The statement which this paper is based on argues that international law is not imposed on states, however, when one looks at the Right of Passage over Indian Territory case, Portugal claimed a right of passage over Indian territory but India claimed that no local custom could be established between the two states, however the ICJ declared that there had in the past existed a right of passage and due to it being a constant and uniform practice it was accepted as customary law. What this case shows then is that international law is in some circumstances imposed on sovereign states.

Another source of international law which impacts on sovereign states are treaties and, unlike custom, these are a more modern and deliberate method. For the purpose of this paper one will look at the law-making treaties, which are intended to have universal or general relevance, as opposed to bilateral treaties which are between few states. The reasoning for this is because it bears more international relevance because more states are involved. Article 38 refers to ‘international conventions, which establish rules expressly recognised by the contradicting states’, these conventions or treaties are express agreements which are agreed by states and bear a close resemblance to contracts in that these agreements once signed are binding on states. The sheer amount of international treaties has increased dramatically over the past century and it could be argued that this increase is due to the growing need for ratification of the concept of international law. Some treaties require the participation of a large number of parties in order o produce rules which can be binding on all, these treaties are a prescribed set of rules to be followed and an example of this could be the Genocide Convention. This particular type of treaty is a compulsory agreement which even if not signed by some parties is still binding due to it then becoming not only a treaty but a customary act. Therefore, although it can be difficult to ratify international law it can be imposed on states in some circumstances.

A further source of international law is the general principles of law which arises when there is no statute nor judicial precedent which covers a certain legal point. What this method does is deduce a rule which is best relevant to the point by using already existing rules or directly from the general principles of law. This has further relevance in international law due to there being no method of legislating new situations. However, what this principle does is bridge a gap that could appear international law thereby solving a possible problem. This can therefore impact on states because even if a certain...

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