Sources of International Law

Question 1

Is there a main procedure for making law in international law?

Answer 1

No

Question 2

Explain the Lotus Principle

Answer 2

-States are free to act they see fit
-Unless there is a leg. rest. of their conduct
-cannot assume the existence of an obligation
-just because it seems natural=/ intl law

Question 3

Where can the statute outlining the sources of law which the ICJ consider be found?

Answer 3

-art. 38(1)
-ICJ Statute

Question 4

Explain what the two elements of Customary International Law are?

Answer 4

-evidence of GENERAL PRAC. (obj.)
-accepted by law (sub)

-wording of ICJ Statute

Question 5

Explain the subjective part of CIL

Answer 5

Subjected element–> “accepted as law”
-opinio juris
-feel that it is a legal obligation, not just acknowledging that its a custom
-(C77) North Sea Continental Shelf Cases

Question 6

Which ruling clarified what Customary International law was?

Answer 6

North Sea Continental Shelf Cases

Question 7

Explain the facts of the North Sea Continental Shelf Cases-

Answer 7

-Den. + NL both want equidistance rule to apply
-they’ve signed the convention
-Germany did not
-but they want them to !!
-no convention signed= have to prove CIL

Question 8

Explain the judgement of the North Sea Continental Shelf Cases

Answer 8

-Court: it’s not CIL–> no opinio iuris sives necessitas

Question 9

When does law-making occur in CIL?

Answer 9

-1.obv the general requirements
-2.when states break CIL and claim its because of CIL/IL
-modification of law because of opinio iuris (+ state practice)

Question 10

When does law-breaking occur in CIL?

Answer 10

• violate it
  -no claim its IL
  -or no valid claim opino iuris + state practice is met

Question 11

Explain the stringency of the requirement of state practice

Answer 11

-not super rigorous
-ICJ Military and Paramilitary Activities in and Against Nicaragua
-C.186

Question 12

What are the type of treaties?

Answer 12

-Bilateral treaties
-Law-making treaties
-Constitutive Treaties

Question 13

Explain what a bilateral treaty is

Answer 13

-treaty between two states

Question 14

Explain what a law-making treaty is?

Answer 14

-treaties with multiple parties
-codify or create international law

Question 15

What is a constitutive treaty?

Answer 15

• treaty establishing international institutions

Question 16

Can VCLT be applied retroactively?

Answer 16

-No (art.4 of VCLT)

Question 17

Describe the requirements of a treaty under the VCLT

Answer 17

-Art.2 of VCLT
-intl agreement
-those not governed by VCLT is governed by CIL
-Written
-not governed by dom. law (intl law)

Question 18

What are the two basic principles of the VCLT

Answer 18

-1.Binding nature found in explicit consent
-Consent to be bound
(Art.11-17 VCLT)
-cannot assume consent (lotus principle)
- 2.Pacta sunt sevanda
-Agreements shall be respected
-Treaty IN FORCE binding upon the parties
-must be performed in GOOD FAITH

Question 19

Where are the requirements of a treaty found in the VCLT

Answer 19

Art.2

Question 20

Explain what Pacta Sunt Servanda is

Answer 20

2.Pacta sunt sevanda
-Agreements shall be respected
-Treaty IN FORCE binding upon the parties
-must be performed in GOOD FAITH

Question 21

Explain the principles of consent to be bound

Answer 21

• 2.Pacta sunt sevanda
  -Agreements shall be respected
  -Treaty IN FORCE binding upon the parties
  -must be performed in GOOD FAITH

Question 22

What is the power of law CIL v. treaties

Answer 22

treaties> CIL

Question 23

Is there the principle of stere decisis in International Law

Answer 23

-no

Question 24

Are there sources of international law beyond art. 38

Answer 24

yes !

Question 25

List the sources of international law beyond art.38

Answer 25

-Unilateral declarations
-Soft laws
-UNGA resolutions

Question 26

Where can the law affirming the legal power of unilateral declarations be found?

Answer 26

Nuclear Test Case (C43)

Question 27

Explain monism

Answer 27

International law has direct force in national law as its ORIGINAL form (international law)

Question 28

Explain dualism

Answer 28

Transforming international law into the national system to make it official in the form of NATIONAL law