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The Constitution and International law (International public law) - Coggle…
The Constitution and International law (International public law)
Key terms
"Dualism" - The idea that there is a strict separation between International and domestic law
The sources of international law:
(According to:) Statute of the ICJ — Article 38 (1)
1) International conventions (Bound by International law)
These may be general or particular -- And they establish rules that are expressly recognised by the contesting states
2) International custom
In the past (e.g. Blackstone's time) it was assumed that C. international law would automatically become binding. However, now judges can "choose" whether to apply customary law or not
This is (1) Consistent state practice + (2)
Opinio iuris
(evidence from state/international organisations, that the rule itself is binding upon them)
3) The general principles of law recognised by civilised national (”Soft law”)
Lord C - It is "authoritative guidance"
Lord Reed - The idea that "soft law" is authoritative guidance is a misguided idea, "exaggerated claims as to the [general] comments' status and effects".
4) Judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law (Non-binding)
Rwanda case
Conventions - Many treatises were cited (e.g. Convention against torture)
Held: The Policy was unlawful
However, via Parliamentary sovereignty, this was overruled.
Re Allister [2023]
EU law
Retained EU law