Sources of International law

Question 1

Which piece of legislation lays out the sources of international law?

Answer 1

Article 38 Statute of the ICJ

Question 2

What are the main sources of law according to article 38?

Answer 2

a. International Conventions
b. International Custom
c. general principles of law
d. judicial teachings

Question 3

What does Art 38 (2) state?

Answer 3

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Question 4

Definition of treaties? law?

Answer 4

“international agreements concluded between states in written form and governed by international law”

Art 2(1)(a) Vienna Convention

Question 5

What is the basis of why we have treaties?

Answer 5

State sovereignty - idea that the states VOLUNTARILY hold themselves to account

Question 6

What is the vienna convention?

Answer 6

convention that provides rules on how we interpret treaties

Question 7

What two elements is international custom made up of?

Answer 7

State practice and Opinio Juris

Question 8

Which procedural rules are applied in international law?

Answer 8

1. Court should consider all legal arguments before coming to a decision, even when a state involved does not want to participate in proceedings
2. circumstantial evidence is accepted in court
3. judicial decision cannot be reopened once made (res judicata principle)
4. estoppel
5. violations of international law involve obligation to make reparation

Question 9

Which case concerns the courts considering all legal arguments?

Answer 9

Nicaragua v USA

Question 10

Which case concerns whether circumstantial evidence is accepted in court?

Answer 10

Corfu Channel case

UK v Albania 1949

UK travelling through Albanias territorial seas hit a sea mine

UK wished to use circumstantial evidence in the ICJ

this was allowed because ICJ saw that other countries accepted circumstantial evidence

Question 11

Which case concerns the res judicata principle?

Answer 11

administrative tribunal case 1954

Question 12

Which case concerns the principle of estoppel?

Answer 12

Temple of Preah Vihear 1962

Question 13

which case concerns the obligation to make reparation?

Answer 13

Chorzow Factory Case

Germany v Poland

Question 14

Describe the binding force of judicial decisions? Law?

Answer 14

binding force between the parties in that particular case ONLY - art 59 ICJ

no formal doctrine of precedent - although courts decide cases in a way in order to not blatantly contradict judicial decision

Question 15

Further sources of international law?

Answer 15

Unilateral acts

soft law

Question 16

Which case concerns unilateral acts? Facts?

Answer 16

Nuclear Tests case 1974

unilateral acts can feed into the development of international law, so can indirectly create international legal obligations

otherwise, these are not a source of law

Question 17

Give en example which explains the significance of unilateral acts

Answer 17

if one state argues that certain conduct is customary practice, another state may perform a unilateral act to overpower the customary practice

Question 18

what is soft law?

Answer 18

non-binding agreements

Question 19

What is state practice?

Answer 19

objective material evidence

Question 20

Why does it take such a long time for customary law to develop?

Answer 20

because both state practice and opinio juris are required

Question 21

Which 2 main cases concern the need for state practice and opinio juris?

Answer 21

North Sea Continental Shelf - 1969

Nicaragua 1986

Question 22

What are the rules concerning state practice?

Answer 22

usage “must be constant and uniform” - HIGH THRESHOLD
Asylum Case, Colombia v Peru 1950

“generally adopted in the practice of states” - LOWER THRESHOLD
Anglo-Norwegian Fisheries Case 1951

“extensive and uniform”
COMPROMISE BETWEEN PREVIOUS 2 - acceptance need not be uniform, simply high degree of generality required
North Sea Continental Shelf case 1969

SP should amount to a consistent pattern of behaviour - Nicaragua

sufficient amount of time must have passed to satisfy above 2 conditions

Question 23

What are the rules concerning Opinio Juris? Cases? (2)

Answer 23

SP must be accompanied by Opinio Juris - Nicaragua

OJ is subjective - state concerned must BELIEVE that they are conforming to what amounts to a legal obligation

evidence of OJ must be explicit - North Sea

Question 24

Definition of State Practice

Answer 24

“any act or statement by a state from which views about CIL may be inferred”

(Akehurst - scholar)

Question 25

examples of state practice that are not obvious (4)

Answer 25

SP can be ANY action omissions acts of private individuals (but must act with state authority) verbal statements voting

Question 26

give an example of state practice arising out of verbal statements

Answer 26

some states did not bomb Kosovo, but verbally supported and encouraged it

Question 27

Give an example of where votes have been viewed as state practice

Answer 27

Nicaragua 1986 states signed friendly relations act 1970 (general assembly resolution) which prohibited use of force ICJ looked to the friendly relations declarations, where states voted in favour of the prohibition of force - this was sufficient to constitute state practice

Question 28

can a failure to act create customary international law? Cases? (2)

Answer 28

Lotus case failure to exercise jurisdiction was not sufficient for OJ to arise there might have been other reaosons why state abstained from exercising jurisdiction Nuclear Weapons Advisory Opinion 1996 - no use of nuclear weapons over past 50 years does not amount to opinio juris

Question 29

What other considerations exist when determining state practice? (3)

Answer 29

1. special weight given to states most specially affected - North Sea Case 2. local custom - customary rules ma emerge on regional / local basis - Asylum case 3. duration

Question 30

Examples of what may constitute as Opinio Juris? Case?

Answer 30

Nicaragua 1. attitude of state towards general assembly resolutions 2. statements made by state officials 3. similar ground covered in treaties broad and non-exhaustive list; LOW threshold

Question 31

Can customary International law change? Case?

Answer 31

Nicaragua acts of state inconsistent with a rule are generally treated as breaches of the rule, not as a recognition as a new rule however, it might change where a principle by one state is shared by others, and they come out in force to give evidence that a law should change, then a new law might develop

Question 32

What do articles 34 and 38 of the Vienna convention state??

Answer 32

art 34 - treaty cannot impose an obligation on a third party without their consent art 38 - nothing prevents a treaty binding a state as customary international law

Question 33

What is crystallization?

Answer 33

more and more states warm to the idea of a practice becoming customary law they come together and ratify treaties concerning this practice - this accelerates the process of state practice becoming binding law

Question 34

Explain the importance of General assemblies?

Answer 34

they are non-binding HOWEVER if they contain special language which proves the states believe a certain provision to be law, then it is law Shaw - unanimous decisions of the general assembly could have a creative role in the formation of custom

Question 35

treaties: when is a text adopted?

Answer 35

by consent of all states participating in its drawing up - art 9 p 1 2/3 majority vote of the states present and voting at an international conference - art 9 p 2

Question 36

when does a state consent to a treaty? (6)

Answer 36

art 11 vienna convention signature exchange of instruments ratification acceptance approval accession

Question 37

when does a treaty enter into force?

Answer 37

article 24 on date provided in treaty, or as may negotiating parties may agree

Question 38

What must happen to a treaty entered into? law?

Answer 38

Art 102 UN Charter must as soon as possible be registered with the secretariat and published

Question 39

Article 18 Vienna convention?

Answer 39

A state must refrain from acts which would defeat the object of a treaty when: a. they signed and ratified the treaty b. they expressed consent to be bound by the treaty

Question 40

Article 26 Vienna Convention?

Answer 40

every treat binding upon parties to it

Question 41

What happens when a convention is signed and not ratified?

Answer 41

Art 18 applies - state must do no act that prevents the objective of the treaty

Question 42

LOTUS case rule about permitted behaviour

Answer 42

if we cannot find rule that prohibits behaviour, we must assume it is permitted

Question 43

(customary international law): what is the persistent objector rule, and what are the rules concerning this rule?

Answer 43

Persistent objector rule - Anglo Fisheries Case 1. persistence must be public 2. persistence must be consistent

Question 44

(customary international law): what is the persistent objector rule, and what are the rules concerning this rule?

Answer 44

Persistent objector rule - Anglo Fisheries Case 1. persistence must be public 2. persistence must be consistent