S2 Sources of International Law Flashcards
(63 cards)
what is the primary source of international law?
Treaty
who enforces international law?
this is the role of international institutions such as UN Charter bodies and Treaty bodies
what is international law?
is the body of rules which regulates a state’s conduct in relation to other state on the international levels.
what’s the subject of international law?
states, not individuals
what makes countries bound under a treaty?
consent
Dualist state?
international and domestic laws are seperate
Eg; Al-Kateeb case
what does dualist state mean for Australia?
Strict seperation between domestic and international law
Alleged breach of international law cannot be determined by domestic court - only by an international tribunal such as UN body
Can individuals from dualist system bring complains before UN ?
Usually not, States have laws to protect the rights of their citizen
Exception - individual complaints mechanism under Optional Protocol 1 of ICCPR
The main sources of International law under?
Art 38 of Statute of the International Court of Justice (ICJ)
The main sources of International law?
- Treaties
- International Custom
- the general principle of international law recognised by civilised nations
- Judicial decisions and the teachings of the most highly qualified publicists
International law forms?
1- Treaties and conventions
2- Customary International Law
Bill of Rights;
- UDHR
- ICCPR
- ICESCR
what is Customary international law (CIL)?
‘unwritten law’ - based on the actual practice of the states, rather than a written document
is Customary Law as biding as a Treaty?
yes, but difficult to prove it’s existence and consent
is consent a requirement for customary law?
No consent or agreement required
Requirement for proving CIL?
1- Unambiguous and uniform state practice - followed by significant number of states over a significant period of time
2- Subjective Belief by states that this practice is mandatory (Opinio Juris) - followed out of a sense of legal obligation
Opinio Juris?
“an opinion of law or necessity.”
what was the first Universal statement of UN?
UDHR
Content of UDHR consists of
preamble and 30 articles setting forth the human rights and fundamental freedoms to which all men and women everywhere in the world are entitled without discrimination: liberty, equality in dignity and rights, security, non- discrimination and a host of civil and political rights (Arts 4-21) as well as economic, social and cultural rights (Arts 22-27)
Among the rights and freedoms named in the UDHR are:
the right to life, liberty and security of person
equality before the law
the right to freedom of movement and residence
freedom from torture and cruel, inhuman or degrading treatment or
punishment
the right to seek asylum in other countries
freedom of thought, conscience and religion
the right to own property
the right to education
the right to work and to form and join trade unions
the right to an adequate standard of living
the right to health care
the right to freely participate in the cultural life of the community 12
when did UDHR declared?
UDHR is a declaration of the UN General Assembly adopted
on 10 December 1948
several aspects of the UDHR are by operation of process of CIL, binding upon all states. These are generally thought to include prohibition against slavery, genocide, torture, arbitrary detention and systematic racial discrimination.
is UDHR a treaty or convintion?
No
Main source of International Law?
Treaties - Only treaties can create (& define powers of) international institutions (such as UN) to monitor, implement & enforce international law
Main 2 human rights treaties?
International Covenant on Civil and Political Rights 1966 (ICCPR)
International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)
