Flashcards in Module 2 – Sources of International Law Deck (22)
Name the five sources of international law under the Statute of the International Court of Justice, Art. 38(1).
Treaties (or conventions), custom, general principles of law, judicial decisions, scholarly teachings.
Outside of Art 38(1) of the ICJ Statute, what are three other sources of international law?
UN Resolutions, international organisations, soft law.
Under what article of which treaty is ‘treaty’ defined?
The Vienna Convention on the Law of Treaties (1968), Article 2(1).
What is 'customary law"?
The customary practices of States prior to WWII, such as saving shipwreck victims and treatment of POWs.
What is the function of the International Law Commission?
The ILC develop and codify public international law.
Describe the North Sea Continental Shelf cases.
A series of disputes between West Germany, Denmark and the Netherlands in 1969 over access to the North Sea contintental shelf over whether the 'equidistance principle' was a rule of customary international law.
What are the necessary elements for international custom to be recognised as customary law and describe.
State practice (common and consistent) and opinio juris (practice is widely accepted)
Describe the Asylum Case
Between Colombia and Peru in 1950 over asylum of de la Torre (Peruvian rebel). Columbia argued their decision was binding under international convention, but rejected by ICJ (was not customary law).
Describe opinio juris
Principle that a practice is so widely accepted that no State would reject it.
Describe the Anglo Norwegian Fisheries Case.
Between UK and Norway in 1951, recognised 'persistent objector' principle.
Describe the 'persistent objector' principle.
Principle that a State may avoid obligations under customary international law through objection at time of creation.
Describe the Right of Passage Case.
Between Portugal and India in 1960, Portugal argued it had by regional custom access to Indian coastal waters (India was a newly formed state). ICJ rejected.
What is the significance of the Nicaragua case?
(Nicaragua v US in 1986) US in breach of obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty, not to interrupt peaceful maritime commerce, and in breach of its obligations under the Treaty of Friendship, Commerce and Navigation.
What is the significance of the Israeli Wall advisory opinion?
2004 opinion - ICJ will consider practices of UN bodies to determine customary international law
Describe the Contintental Shelf Case between Libya and Malta.
1980 case where Libyan gunboat threatened Maltese commissioned oil rig. To determine if custom forms part of international law, look at actual practice and opinio juris. Treaties may also play a role.
Describe the significance of West Rand Gold Mining Co v The King.
(1905) opinio juris is determined by asking whether the custom is so widely accepted that no civilised state would repudiate it.
What is 'jus cogens'?
Principles of international law formed through custom.
What are the advantages of 'jus cogens'?
Allows development of customary international law and ensures commitment through development.
What are the problems with 'jus cogens'?
Develops customary international law slowly and can be uncertain - treaties often simpler.
Describe SC Resolution 1373 and its signicance as a source of law.
passed 12 September 2001, required states to take measures countering terrorism. Significant as is a source of interintal law - imposed binding, ongoing legal obligations.
Describe the Nuclear Test cases
(Australia and NZ v France) 1974 - media statements by French president and defence minister, speech to UNGA by foreign minister binding (despite being a unilateral declaration).