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foundations of international > Sources of International law > Flashcards

Sources of International law Flashcards

1
Q

Which piece of legislation lays out the sources of international law?

A

Article 38 Statute of the ICJ

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2
Q

What are the main sources of law according to article 38?

A

a. International Conventions
b. International Custom
c. general principles of law
d. judicial teachings

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3
Q

What does Art 38 (2) state?

A

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

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4
Q

Definition of treaties? law?

A

“international agreements concluded between states in written form and governed by international law”

Art 2(1)(a) Vienna Convention

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5
Q

What is the basis of why we have treaties?

A

State sovereignty - idea that the states VOLUNTARILY hold themselves to account

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6
Q

What is the vienna convention?

A

convention that provides rules on how we interpret treaties

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7
Q

What two elements is international custom made up of?

A

State practice and Opinio Juris

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8
Q

Which procedural rules are applied in international law?

A
  1. Court should consider all legal arguments before coming to a decision, even when a state involved does not want to participate in proceedings
  2. circumstantial evidence is accepted in court
  3. judicial decision cannot be reopened once made (res judicata principle)
  4. estoppel
  5. violations of international law involve obligation to make reparation
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9
Q

Which case concerns the courts considering all legal arguments?

A

Nicaragua v USA

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10
Q

Which case concerns whether circumstantial evidence is accepted in court?

A

Corfu Channel case

UK v Albania 1949

UK travelling through Albanias territorial seas hit a sea mine

UK wished to use circumstantial evidence in the ICJ

this was allowed because ICJ saw that other countries accepted circumstantial evidence

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11
Q

Which case concerns the res judicata principle?

A

administrative tribunal case 1954

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12
Q

Which case concerns the principle of estoppel?

A

Temple of Preah Vihear 1962

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13
Q

which case concerns the obligation to make reparation?

A

Chorzow Factory Case

Germany v Poland

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14
Q

Describe the binding force of judicial decisions? Law?

A

binding force between the parties in that particular case ONLY - art 59 ICJ

no formal doctrine of precedent - although courts decide cases in a way in order to not blatantly contradict judicial decision

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15
Q

Further sources of international law?

A

Unilateral acts

soft law

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16
Q

Which case concerns unilateral acts? Facts?

A

Nuclear Tests case 1974

unilateral acts can feed into the development of international law, so can indirectly create international legal obligations

otherwise, these are not a source of law

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17
Q

Give en example which explains the significance of unilateral acts

A

if one state argues that certain conduct is customary practice, another state may perform a unilateral act to overpower the customary practice

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18
Q

what is soft law?

A

non-binding agreements

19
Q

What is state practice?

A

objective material evidence

20
Q

Why does it take such a long time for customary law to develop?

A

because both state practice and opinio juris are required

21
Q

Which 2 main cases concern the need for state practice and opinio juris?

A

North Sea Continental Shelf - 1969

Nicaragua 1986

22
Q

What are the rules concerning state practice?

A

usage “must be constant and uniform” - HIGH THRESHOLD
Asylum Case, Colombia v Peru 1950

“generally adopted in the practice of states” - LOWER THRESHOLD
Anglo-Norwegian Fisheries Case 1951

“extensive and uniform”
COMPROMISE BETWEEN PREVIOUS 2 - acceptance need not be uniform, simply high degree of generality required
North Sea Continental Shelf case 1969

SP should amount to a consistent pattern of behaviour - Nicaragua

sufficient amount of time must have passed to satisfy above 2 conditions

23
Q

What are the rules concerning Opinio Juris? Cases? (2)

A

SP must be accompanied by Opinio Juris - Nicaragua

OJ is subjective - state concerned must BELIEVE that they are conforming to what amounts to a legal obligation

evidence of OJ must be explicit - North Sea

24
Q

Definition of State Practice

A

“any act or statement by a state from which views about CIL may be inferred”

(Akehurst - scholar)

25
Q

examples of state practice that are not obvious (4)

A

SP can be ANY action

omissions

acts of private individuals (but must act with state authority)

verbal statements

voting

26
Q

give an example of state practice arising out of verbal statements

A

some states did not bomb Kosovo, but verbally supported and encouraged it

27
Q

Give an example of where votes have been viewed as state practice

A

Nicaragua 1986

states signed friendly relations act 1970 (general assembly resolution) which prohibited use of force

ICJ looked to the friendly relations declarations, where states voted in favour of the prohibition of force - this was sufficient to constitute state practice

28
Q

can a failure to act create customary international law? Cases? (2)

A

Lotus case

failure to exercise jurisdiction was not sufficient for OJ to arise

there might have been other reaosons why state abstained from exercising jurisdiction

Nuclear Weapons Advisory Opinion 1996 - no use of nuclear weapons over past 50 years does not amount to opinio juris

29
Q

What other considerations exist when determining state practice? (3)

A
  1. special weight given to states most specially affected - North Sea Case
  2. local custom - customary rules ma emerge on regional / local basis - Asylum case
  3. duration
30
Q

Examples of what may constitute as Opinio Juris? Case?

A

Nicaragua

  1. attitude of state towards general assembly resolutions
  2. statements made by state officials
  3. similar ground covered in treaties

broad and non-exhaustive list; LOW threshold

31
Q

Can customary International law change? Case?

A

Nicaragua

acts of state inconsistent with a rule are generally treated as breaches of the rule, not as a recognition as a new rule

however, it might change where a principle by one state is shared by others, and they come out in force to give evidence that a law should change, then a new law might develop

32
Q

What do articles 34 and 38 of the Vienna convention state??

A

art 34 - treaty cannot impose an obligation on a third party without their consent

art 38 - nothing prevents a treaty binding a state as customary international law

33
Q

What is crystallization?

A

more and more states warm to the idea of a practice becoming customary law

they come together and ratify treaties concerning this practice - this accelerates the process of state practice becoming binding law

34
Q

Explain the importance of General assemblies?

A

they are non-binding

HOWEVER

if they contain special language which proves the states believe a certain provision to be law, then it is law

Shaw - unanimous decisions of the general assembly could have a creative role in the formation of custom

35
Q

treaties: when is a text adopted?

A

by consent of all states participating in its drawing up - art 9 p 1

2/3 majority vote of the states present and voting at an international conference - art 9 p 2

36
Q

when does a state consent to a treaty? (6)

A

art 11 vienna convention

signature

exchange of instruments

ratification

acceptance

approval

accession

37
Q

when does a treaty enter into force?

A

article 24

on date provided in treaty, or as may negotiating parties may agree

38
Q

What must happen to a treaty entered into? law?

A

Art 102 UN Charter

must as soon as possible be registered with the secretariat and published

39
Q

Article 18 Vienna convention?

A

A state must refrain from acts which would defeat the object of a treaty when:

a. they signed and ratified the treaty
b. they expressed consent to be bound by the treaty

40
Q

Article 26 Vienna Convention?

A

every treat binding upon parties to it

41
Q

What happens when a convention is signed and not ratified?

A

Art 18 applies - state must do no act that prevents the objective of the treaty

42
Q

LOTUS case rule about permitted behaviour

A

if we cannot find rule that prohibits behaviour, we must assume it is permitted

43
Q

(customary international law): what is the persistent objector rule, and what are the rules concerning this rule?

A

Persistent objector rule - Anglo Fisheries Case

  1. persistence must be public
  2. persistence must be consistent
44
Q

(customary international law): what is the persistent objector rule, and what are the rules concerning this rule?

A

Persistent objector rule - Anglo Fisheries Case

  1. persistence must be public
  2. persistence must be consistent

foundations of international (6 decks)

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