Lecture 7&8: Public international law and Sources of international law

Question 1

How was public international law traditionally defined?

Answer 1

As the law governing relations between states.

Question 2

What does public international law include in contemporary understanding?

Answer 2

A system of rules and principles governing international relations between states and other subjects of international law.

Question 3

What are the primary sources of international law under Art. 38(1) ICJ Statute?

Answer 3

Treaties, customary international law, general principles of law, and other possible sources.

Question 4

Are UN General Assembly resolutions sources of international law?

Answer 4

No, they are non-binding under Art. 10 and 14 of the UN Charter, but they may contribute to customary international law.

Question 5

What are the two conditions for a UNGA resolution to contribute to customary international law?

Answer 5

Uniform and consistent state practice, and opinio iuris.

Question 6

What is the definition of a treaty?

Answer 6

A legally binding agreement between subjects of international law with treaty-making capacity.

Question 7

Which convention governs treaties and their rules?

Answer 7

The Vienna Convention on the Law of Treaties (VCLT).

Question 8

What are the three phases of concluding a treaty?

Answer 8

1. Negotiation (Art. 6, 9 VCLT)
2. National approval
3. Binding consent on international level (ratification) (Art. 11, 18 VCLT)

Question 9

What two requirements make a treaty legally binding?

Answer 9

1. State consent to be bound (Art. 11, 18 VCLT)
2. Treaty has entered into force (Art. 24 VCLT)

Question 10

What is pacta sunt servanda?

Answer 10

Treaties must be performed in good faith (Art. 26 VCLT).

Question 11

Are treaties binding on third states?

Answer 11

No, unless they have erga omnes effect (Art. 34 VCLT).

Question 12

When may a reservation be made to a treaty?

Answer 12

Upon signing or ratifying, unless:

Prohibited by treaty

Outside allowed types

Incompatible with object and purpose of the treaty

Question 13

What are the four main methods of treaty interpretation?

Answer 13

Grammatical, systematical, teleological, historical.

Question 14

What is the principle of effet utile?

Answer 14

Interpretation should ensure effective implementation of the treaty.

Question 15

What are travaux préparatoires and when are they used?

Answer 15

Preparatory works used under Art. 32 VCLT to clarify ambiguous terms.

Question 16

What are the VCLT grounds for treaty invalidity?

Answer 16

Error (Art. 48), fraud (Art. 49), corruption (Art. 50), coercion (Art. 51–52).

Question 17

What is a ius cogens norm and its effect on treaties (Art. 53 VCLT)?

Answer 17

A peremptory norm of international law that renders conflicting treaties void.<

Question 18

Examples of ius cogens norms?

Answer 18

Prohibitions of slavery, genocide, torture, wars of aggression, nonrefoulement, right to self-determination.

Question 19

How can a treaty be terminated consensually?

Answer 19

Withdrawal, mutual agreement, or a later treaty on the same subject.

Question 20

What are nonconsensual grounds for treaty termination?

Answer 20

Material breach (Art. 60), impossibility of performance (Art. 61), fundamental change in circumstances (Art. 62).

Question 21

What is monism in international law?

Answer 21

International law and national law are parts of one legal system; int’l law prevails in conflict.

Question 22

Which countries follow the monist theory?

Answer 22

Switzerland, Austria, Netherlands, France, Luxembourg, Belgium.

Question 23

What is dualism in international law?

Answer 23

International law and national law are separate systems; courts apply their respective laws.

Question 24

Which countries follow the dualist theory?

Answer 24

Germany, UK, USA, Canada, Italy.

Question 25

What are the two elements of customary international law?

Answer 25

(1) Uniform and consistent state practice; (2) Opinio iuris — the belief that the practice is legally required.

Question 26

Where is customary international law recognized as a source of law?

Answer 26

Art. 38 para 1 lit. b of the ICJ Statute.

Question 27

Define opinio iuris.

Answer 27

The belief by states that a certain conduct is required by international law.

Question 28

Give examples of customary international law.

Answer 28

Prohibition of executing offenders under age 18 at time of crime Some provisions of the UDHR Some parts of the VCLT Immunity of visiting foreign heads of state

Question 29

What are general principles of law and where may they come from?

Answer 29

Principles derived from national law, general legal reasoning, or specific treaty regimes.

Question 30

What are the three functions of general principles of law in international law?

Answer 30

As sources of concrete rights/obligations As interpretative tools As foundations for developing new legal norms

Question 31

What are subsidiary means for the determination of international law?

Answer 31

Judicial decisions and teachings of publicists (Art. 38 ICJ).

Question 32

What is the role of judicial decisions in international law?

Answer 32

They clarify legal rules but are not generally binding.

Question 33

What are the teachings of publicists and give an example.

Answer 33

Writings of highly qualified scholars; example: UN’s International Law Commission.

Question 34

Define monism in international law.

Answer 34

International and national law are part of a single legal system; int’l law prevails in conflict.

Question 35

Define dualism in international law.

Answer 35

International and national law are separate systems; each applies within its own sphere.

Question 36

In monist states, how is international law treated internally?

Answer 36

Automatically part of national law, unless specifically excluded.

Question 37

In dualist states, how is international law treated internally?

Answer 37

Must be deliberately adopted through national legislation to have domestic effect.

Question 38

Does international law require a state to adopt monism or dualism?

Answer 38

No; states choose their own approach, but must respect int’l law.

Question 39

What is the doctrine of incorporation?

Answer 39

International law is automatically part of national law unless explicitly excluded.

Question 40

What is the doctrine of transformation?

Answer 40

International law becomes national law only after deliberate inclusion via domestic legislation.

Question 41

Key difference between incorporation and transformation?

Answer 41

Incorporation = automatic inclusion; transformation = deliberate legislative act.

Question 42

Under the incorporation doctrine, when can courts apply international law?

Answer 42

Unless a national law precludes it, courts may apply int’l law automatically.

Question 43

Under the transformation doctrine, when can courts apply international law?

Answer 43

Only after it has been explicitly implemented as national law.

Question 44

Does monism guarantee direct applicability of all international law?

Answer 44

No; only self-executing provisions are directly applicable.

Question 45

What are the two conditions for self-executing international provisions?

Answer 45

Must regulate individual rights/duties Must be sufficiently concrete for authoritative adjudication

Question 46

Example of a monist state that applies incorporation but not always direct applicability?

Answer 46

Switzerland

Question 47

Besides Art. 38 ICJ, where else can international legal norms come from?

Answer 47

Resolutions and acts of international organizations Soft law instruments (e.g., declarations, guidelines)

Question 48

What is "soft law"?

Answer 48

Non-binding instruments that may influence or develop into binding international norms.