answer to tutorial 1

8/2/2019 Answer to Tutorial 1

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1. What is Public International Law and how do you distinguish it from private internationallaw?

First and foremost is to define what is International law? According to Stephen Hall in

International Law, international law is the system of legally binding rules and principles

which regulated relation exclusively among sovereign states. This means that States were

held to be the only subjects of international law and only entities possessing legal

personality rights at international level.

It could also be defined as a body of rules and principles which regulates relations:

i) Among states and public international organisation inter se;ii) Between states and individuals in the field of international human rights; andiii) Between the international society and individuals who have committed international

crimes.

Public international law is a uniform and autonomous system of norms regulating relations

among its subjects, private international law consists of norms developed within States as part

of their own domestic legal orders to resolve disputes between private parties where a foreign

element is involved.

Private international law on the other hand determines the choice of law applicable to a legal

dispute, whether a particular court or tribunal has jurisdiction where there is a cross-border

element and whether it should exercise any such jurisdiction, and whether a domestic court may

order the enforcement of a foreign courts judgement.

2. Explain the doctrine of supranational power.Refers to the formal transfer of legal authority and decision-making power from member

states to an institution or international body. In this context Moravcsik distinguishes

between pooled sovereignty when governments agree to make future decisions by

voting procedures other than unanimity; and delegated sovereignty when supranational

actors are given the authority to take certain sorts of decisions without either a vote

amongst affected governments or the capacity of states to veto the decision.

Although often used loosely to describe any set of institutions above the state, the termrefers more properly to a particular characteristic of international institutions and

international legal authority. The clearest examples of supranational institutions can be

found in the European Union, where the Commission, the European Parliament, and the

European Court of Justice, constitute common political structures with supranational

authorityin contrast to the Council of Ministers, which is based on intergovernmental

modes of decision-making.

Supranational institutions played a key role in neofunctionalist accounts of European

integration. Neofunctionalists argued that high and rising levels of interdependence and

cross-border exchange would generate increasing demands for the creation of

supranational institutions to solve common problems.


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This, in turn, would catalyse a process of ever expanding collaboration between member

states, leading eventually to political integration. More recently, theorists have challenged

intergovernmental accounts of European integration both by highlighting the formally

supranational components of the European Union but also by challenging the view that

member-states have simply delegated certain powers for particular purposes and, as

principals, remain in full control of an increasingly complex set of institutions andintegration processes.

3. Article 1 of the Montevideo convention provides the state as a person of international lawshould possess the following qualification a) a permanent population b) a defined territory c)

government and d) capacity to enter into relations with other states.

a) a permanent population; there must be some people to establish the existence of aState but there is not a specification of a minimum number of people and again there

is not a requirement that all of the people be national of the state1

b) territory; the second qualification is territory where the permanent population live on.However, there is not a necessity of having well- established boundaries as the

international Court of Justice said in theNorth Sea Continental Shelfcases, ... there

is... no rule that the land frontiers of a state must be fully delimited and defined.The

well known example is the uncertainty of the land frontiers of Israel when it was

admitted as a State.

c) government; A State requires a government that functions as a political bodywithin the law of the land. But it is not a condition precedent for recognition as an

independent State. There must be a executive and legislative bodies of the said nation

where there are government functions, in another word whether the nation is being

controlled by a single group of people known to the subjects of the states.

d) capacity to enter into relations with other states; the fourth and last qualification isabout independency, in other words independence is indicated by the criterion of

capacity to enter into relations with other states. Or whether is it still bound to another

country or sovereignty. For instance, Tibet and China relationship. Whether Tibet

could go into a contract of sales of firearm from Russia or will Tibet be bound to the

decision of China?

1I. Brownlie, Principles of Public International Law, (7th. ed. Oxford University Press, Oxford 2008)

70; Shaw, n 4 above 199; Warbrick, n 8 above 232;


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4. Identify three main differences between the Anglo- American common law system andthe Roman- Germanic civil law system

Firstly, common law is found from principles set and decided in the precedents. Precedents arethe previous cases decided which has overlapping similarity in principles of law or even facts at

times. The decision of the judge in the precedent is binding to the future cases which is called as

the stare decisis. On the other hand, civil law has it main source of law from the legislation made

by the executive or legislative. The precedent will not be taken as important as the common law.

Cases are not bound to the precedent.

Secondly, common law is an unwritten law. Not all laws and principles of the law will be found

in the statute. Whereas as compared to civil law, every single principles and law is codified. The

judge of the common law is allowed to make law as the famous belief that the advantages arise

when the facts of the cases would be unique in different time and place. In civil law, the judge isbound to follow the law stated and laid down in the codified statutes.

Last but not least, common law is adopting an adversarial system where the counsels in the case

will represent each party either the defendant or the plaintiff before an impartial individual( judge

or jury). It is the responsibility of the counsel to find evidence and present before the court.

Civil law on the other hand adopted the inquisitorial. n the inquisitorial system, the presidingjudge is not a passive recipient of information. Rather, the presiding judge is primarily

responsible for supervising the gathering of the evidence necessary to resolve the case. He or

she actively steers the search for evidence and questions the witnesses, including the

respondent or defendant. Attorneys play a more passive role, suggesting routes of inquiry forthe presiding judge and following the judge's questioning with questioning of their own.

Attorney questioning is often brief because the judge tries to ask all relevant questions.

The goal of both the adversarial system and the inquisitorial system is to find the truth. But

the adversarial system seeks the truth by pitting the parties against each other in the hope that

competition will reveal it, whereas the inquisitorial system seeks the truth by questioning

those most familiar with the events in dispute. The adversarial system places a premium on

the individual rights of the accused, whereas the inquisitorial system places the rights of the

accused secondary to the search for truth.


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Question 5

First of all, opinion juris is defined as subjective obligation, a sense on behalf of a state that it is

bound to the law in question. Usus means customary law is confirmed through the actions of states(objective criteria) in accordance with what is expected of them by international jurisprudence.

States' actions are manifested through their official statements and actual actions.

Agreements are only legally binding on states that signed and also ratified them. The basis of

Treaty law is the rule of law pacta sunt servanda, which means, that agreements must be honoured,

and adhered to. However, only the states that signed and agreed to the agreements could be

bound by the treaty.

Since X is not the member state to the treaty, he is not bound to abide to the restriction in the

treaty. However, if the act of annexing the moon is against the norm or customary law, then itwould be considered as Usus. However, assuming there is no such customary law, then it is non

usus. Eventhough there is opinion juris but it is only binding to those who accepted the treaty

which X is not part of the participants.

However, the international communities and parties involved in the treaties could have just not

recognised the territorial annexed by X belongs to him. There will be no valid declaration of

territorial belonging to X.


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answer to tutorial 1

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