4 : Customary international law and other sources of IL

Question 1

What case embodies the positivist doctrine and what does this doctrine imply ?

Answer 1

Case of the S.S. “Lotus” (France v Turkey) of 1927

Positivist doctrine considers the only way IL rules can be established is through mutual State consent

Question 2

Differences between treaties/custom ? (2)

Answer 2

1/ different role of State consent

2/ principle of relativity of treaties, where custom is binding upon all States

Question 3

What are the 2 constitutive elements of CIL ?

Answer 3

1/ State practice
2/ opinio juris

See North Sea Continental Shelf (1969)

Question 4

Characteristics of ‘practice’ criterion ? (5)

Answer 4

1/ practice of States

2/ practice may be action or inaction

3/ practice must be constant and uniform (Columbian-Peruvian Asylum case, 1950)

4/ time element is not really important => practice, especially of States whose interests are specially affected, has to be extensive and virtually uniform (North
Sea Continental Shelf, 1969)

5/ State practice consisting in breaches of IL is not sufficient to establish custom => necessary to also look at feeling of legal obligation & how States justify their conduct (Military and Paramilitary Activities in and against Nicaragua, 1986)

Question 5

Characteristics of ‘opinio juris’ criterion ? (2)

Answer 5

1/ belief of States that they are conforming to what amounts to a legal obligation (North Sea Continental Shelf, 1969)

2/ States do not need to expressly accept a custom

Question 6

Different types of CIL rules ? (3)

Answer 6

1/ bilateral CIL rules (Right of Passage over Indian Territory (Merits), 1960)

2/ regional/local CIL rules (Columbian-Peruvian asylum case, 1950)

3/ universal CIL rules

Question 7

What is the persistent objector doctrine ?

Answer 7

1/ doctrine always put forth by the minority as a defense against the majority

2/ only mentioned twice (Fisheries case, 1951 ; Columbian-Peruvian Asylum case, 1950)

Question 8

Key issues surrounding CIL (4)

Answer 8

1/ UNGA resolutions and CIL
2/ CIL in HR law and IHL
3/ deductive or inductive CIL rules ?
4/ relations btwn treaty & CIL

Question 9

Different notions of general principles of IL ? (3)

Answer 9

1/ principles of law in general
2/ pcples of IL derived from domestic legal orders
3/ pcples derived from the spirit of existing IL rules

( ! ) subsidiary character of general pcples of IL

Question 10

Characteristics of case law ? (4)

Answer 10

1/ not perceived as a formal source of IL
2/ subsidiary means
3/ only evidence of the primary sources
4/ no system of binding precedent

Question 11

Characteristics of equity (ability of the Court to decide a case ex aequo et bono) ? (3)

Answer 11

1/ not as such a source of IL
2/ means for deciding cases when parties have authorised the court to do so
3/ different roles : infra, praeter, contra legem

Question 12

What are sources of IL that are beyond Art. 38 of the ICJ Statute ? (2)

Answer 12

1/ unilateral acts of States (see Nuclear Tests (New-Zealand v France), 1974)

2/ unilateral acts of IOs (distinguish btwn instrumentum and negotium of decisions)

Question 13

Elements related to the codification and progressive dvpt of IL ? (3)

Answer 13

1/ ILC & codification of IL (Art. 13(a) UN Charter)
2/ Private codification of IL (ILA, Institut de Droit International, ICRC)
3/ soft law/hard law debate