SOURCES

Question 1

What does Article 38 ICJ Statute say?

Answer 1

The Court, whose function is to decide in accordance with
international law such disputes as are submitted to, shall apply:
a. Treaties
b. Customary international law
c. General principles of law recognised by civilised nations
d. Judicial decisions and teachings of the most highly qualified publicists

Question 2

What is provided by the Anglo-Norwegian Fisheries case?

Answer 2

Requirement that the persistent objector should disagree with the practice from the beginning of the conflict between the two states/countries in question.

Exception to the rule that international customary law is binding

Question 3

What constitutes evidence of state practice?

Answer 3

1. Treaties
2. Diplomatic correspondence
3. Statements by national legal advisers (in domestic and international fora)

Question 4

What is meant by instant custom?

Answer 4

Refers NOT to behaviour (which is constant, uniform and frequently engaged in), but rather, to spontaneous activity practised by a great number of states responding to particular circumstance.

Question 5

What precedent does the Wimbledon case set?

Answer 5

If a treaty and a customary rule exist simultaneously on the issue of a dispute, treaty provisions take precedence!!

Question 6

What is meant by peremptory norms of international law?

Answer 6

1. Norms of general international law of which the content CANNOT be modified by agreement;
2. No derrogation may be made except by a norm of EQUAL weight e.g a jus cogens norm

Question 7

Compare monism and dualism

Answer 7

Monists maintain a UNITARY concept of law and regard all law (international law + municipal law) as an integral part of the SAME system.

In Dualism, national law and international law are seen as INDEPENDENT (mutually exclusive). For international law to be part of municipal law, it has to be expressly adopted by means of a LEGISLATIVE ACT.