Public International Law Study Notes

Essay by LegalPhilsopherUniversity, Bachelor's October 2006

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Public International Law Notes


Brief History

- Modern international law generally recognised as having its genesis in the Middle Ages in Western Europe - where, at the time, process of decentralisation leading away from Roman Catholic Church and Holy Roman Empire towards the Reformation and rise of Nation-States

- Thirty Years of War (1618-1948) came to an end with Treaty of Westphalia (significant event for international law) - treaty based on recognition of community of independent and equal "sovereign" entities

- "Natural law", given universalist empire and Church, initially theological (including divine revelation as one of its sources) - however by time of Hugo Grotius (1583-1645) natural law adopting a rationalist approach, being seen to derive from universal reason

- Independence and equality of States translated into need for consent - clear tension between natural law and notion of consent

- "Positivism" challenged natural law in 18-19C - means complete preoccupation with practice and thus consent of States in law creation

(a) State only bound by rules it consents to

(b) If international law did not prohibit conduct, State free to act

- Majority judgment in Lotus was strongly positivist

France v Turkey "The Lotus Case" (PCIJ, 1927)


- Collision between a French and a Turkish ship on the high seas - 8 Turks died

- French officer, Demons, was prosecuted and sentenced to 80 days in prison and fined $22

- France claimed Turkey had impermissibly exercised jurisdiction over Demons


- Turkey had not violated international law

- Unless a rule prohibited certain conduct, then Turkey was free to do so

"The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the...