W2 Sources of IL

Question 1

Sources of Law Generally

Answer 1

Set of criteria use to mark the body of rules that are legally binding
1. A rule or provision must originate from certain practices or documents
2. Different legal systems can have their own accepted sources of law
3. Also a source of law –> Statutes

Question 2

Sources of Law IL

Answer 2

1. No one procedure for making law
2. No parliament –> No legislature
3. No unified judiciary –> Court decisions can be used for clarification
4. States make the law for themselves

Question 3

Statute of the ICJ, Art 38(1)

3 Main sources, 2 Subsidiary Sources

Answer 3

Main: International Conventions, Customs , General Principles of Law

Subsidiary: Judical decisions, scholarly writings

Question 5

CIL

Answer 5

• Fundamental Sources of IL
• Grows from the interactions between states

Question 6

Requirements of CIL

Answer 6

Material Element: State Practice
Subjective Element: Opinio Juris

States can be in breach of CIL BUT as long as they do not claim and non one rats them out its ok!

Question 7

State Practice Requirements

Answer 7

1. Generality does not equal universality
2. No rigid time element
3. New practice may only come after a handful of circumstances
4. Extensive and virtually uniform
5. Specially Affected States

Question 8

What counts as state practice?

Answer 8

1. Material Acts
2. Diplomatic Acts and Correspondance
3. Adoption of National Legislation
4. Court’s Judgements
5. Conscious Abstentions from Actions

Question 9

What counts as Opinio Juris

Name 3

Answer 9

Statements, Resolutions, Publications, Decisions, Provisions etc.

Question 10

International Treaties

Answer 10

Most widespread source of IL
* Law making treaties –> Multilateral
* Constituive Treaties (UN Charter)

Question 11

Vienna Convention on the Law of Treaties (VCLT)

Answer 11

1. VCLT Codified CIL
2. Does not apply retroactively
3. When VCLT does not apply, CIL does –> some states do not recognise this so it is not ratified
4. Only applies to agreements between states
5. Does not apply to agreements with those that are not states
6. Only applies to written treaties

Question 12

Two Basic Principles

Answer 12

1. Consent to be Bound (Art. 11-17 VCLT)
   * Cannot assume consent
   * States must explicity express their consent
2. Pacta Sunt Servanda (Art. 26 VCLT)

Question 13

Unilateral Declarations

Answer 13

Legal Pinky Promise

Question 14

Soft Law

Answer 14

Not legally binding but illistratove of political and moral context in which IL operates and develops

Question 15

Monism v Dualism

Answer 15

M:
1. Int. and Dome. Law form one normative system
2. No gap between them
3. Example: Ukraine

D
1. Two seperate systems
2. Example: UK and North EU countries

Question 16

Mixed Approach

Answer 16

For when neither Monism or Dualsim provide a full picture

Art 27 VCLT