Learning unit 3: International law making as an attribute to state sovereignty Flashcards
(23 cards)
What are the traditional sources of international law?
(a) international conventions [treaties]
(b) international custom [customary international law]
(c) general principles of law
(d) judicial decisions and teachings of publicists
There are 4 traditional sources.
Article 38(1) of ICJ Statute
In what international legal instrument is it provided that customary international law is indeed a source of public international law?
It is outlined in the ICJ Statute. Specifically art. 38(1)(b).
Art. 38(1) of ICJ Statute outlines the** traditional sources of international law**.
What is another name for customary international law?
International customs
What is another name for treaties?
International conventions
What two requirements must be present for a rule of customary international law to develop?
(1) Evidence:
a) justify general state practice exists
b) state accepts practice as international binding rule upon them
(2) Subjective/psychological element/opinio juris sive necessitates
These two elements must be separately ascertained.
TB: page 106
What does it mean for a state to be sovereign?
Means that a state has the exclusive power to perform binding legal functions over its whole territory with the result that other states must refrain from interfering.
Art. 2(7) of UN Charter.
TB page 72.
What is a treaty?
Is ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’
Art 2(1)(a) of Vienna Convention of the Law of Treaties (VCLT)
TB page 74
What is considered a signficant difference between customs and treaties as sources of international law?
In practice and result of increasing codification of international law:
Treaties can be considered of primary signficance while customary international law (international customs) is often used as secondary source in adjudicating disputes between states.
Art. 21 Rome Statute
What are international conventions in the context of Article 38 of ICJ Statute?
Established rules expressly recognized by the contesting states
What does international custom refer to in Article 38?
Evidence of a general practice accepted as law
What does Article 38(1)(d) state about judicial decisions and teachings of publicists?
They are subsidiary means for the determination of rules of law
True or False: There is a strict hierarchy among the sources listed in Article 38.
False
What does the term ‘general principles of law’ refer to in international law?
Principles recognized by civilized nations
What sources may fall outside the scope of Article 38?
Obligations erga omnes and the principle of jus cogens
Fill in the blank: The traditional sources of international law are highlighted in article ______ of the Statute of the International Court of Justice.
38
Does the Constitution of the Republic of South Africa recognise customary
international law provided for in South Africa’s Constitution?
Yes, in Section 232 of the Constitution.
“Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”
What is the purpose of the International Law Commission(ILC)?
To get a group of experts together and to **write down **(or codify) international law in a single, subject-specific document which then serves as a point of reference.
SG page 42
What legal instrument authorised the creation of the ILC?
Art. 13(1)(a) of the UN Charter - authorises the General Assembly to initiate studies and make recommendations for the progressive development and codification of international law.
What does the term ‘lex specialis’ mean?
A principle that states that a specific law prevails over a more general law.
What does the term ‘jus cogens’ refer to in international law?
Peremptory norms from which no derogation is permitted.
True or False: A state can be bound by a treaty it has not ratified.
False
What does the term ‘jus cogens’ refer to in international law?
Peremptory norms from which no derogation is permitted.
True or False: A state can be bound by a treaty it has not ratified.
False
