2 - Sources of Int. Law Flashcards
2 types of sources of Int. Law (a) formal & (b) material). In what aspect of formal source makes it binding between states?
in what way is material source binding?
[formal]
It is the agreement/consent between States that makes it binding & NOT the process
[material]
refers to the substantive provisions of the T/C
What is the doctrine of auto-limitation?
States who entered into a treaty/convention will limit their exercises of sovereignity
as the International Court of Justice (ICJ), how will you decide disputes submitted to you? LB
apply primary sources
1. int. conventions/treaties
2. int. custom
3. general principles of law
and if no primary source, then apply subsidiary sources such as;
4. Judicial Decisions of most highly qualified publicists of the various nations.
LB: Art. 38 (1) on ‘Competence of the Court’
provision of art. 38 (2) will not prejudice the court to decide in that latin maxim, if the parties agree thereto.
latin of “according to what is good and equitable”
ex aequo et bono
while there is classification of the sources of int. law, there is no strict hierarchy of it
however, there is consensus among states that in relation to the primary & subsidiary sources, what is always considered superior to the others/
Jus Cogens or Compelling Law
when is a treaty void? LB
a treaty is VOID, if at the time of its conclusion, it conflicts with a peremptory norm of general international law
PNGIL - is a norm
1. accepted & recognized by the int. community of states as a whole
2. as a norm from which no derogation is permitted &
3. which can be modified only by a subsequent norm of general int. law having the same character
LB: Vienna Convention on the Law of Treaties (VCLT) Art. 53
the ‘belief of law’ latin maxim
relating to CIL being subject to change only when it is replaced by a new CIL (sibjective element)
opinio juris sive necessitates
Paquete Habana Case
were the vessels illegally captured?
Based on Jus en bello (law in war), it is exempt from capture and thus are illegally captured
[detail]
at the time, there were no national legislations regarding vessels engaged in commercial and private purposes in good faith not participating in war can be captured as a prize of war.
no national legislation is important because as a result the US adopts the INCORPORATION CLAUSE.
IOW, no national legislation, we can apply CIL by way of incorporation
In the case of Nicaragua v. United States, the United States argued that it could not be held accountable by the International Court of Justice (ICJ) due to a reservation it had made regarding multilateral treaties. Is there use of force justified as they were not bound to the prohibition?
No, the US using force is unjustifiable.
While the prohibition against threat or use of force in Art. 2 (4) is part of the UN Charter, it must be noted that the prohibition against the same, the prohibition’s nature is a codification of a CIL
> US claims that since the CIL has already been codified, it has lost its character of being a CIL. is the argument tenable?
No, a CIL codified into a treaty/convention will not lose its character as CIL as the same can co-exist independently with treaty/conventions
How is CIL formed? How is it reformed?
LB
There must be two elements
1. Objective Element - (generality of practice)
2. Subjective Element - uniform (opinio juris sive necessitates)
Generally, only states can form CIL which will evolve if **enough states adopt a new practice
is in violation of current CIL, the new practice becomes the new CIL
Sec.102, Restatement (Third)
“CIL results from general & consistent practice of states followed by them from a sense of legal obligation.”
Basic characteristics of CIL
- Repeated state practice (objective element)
- practiced out of a sense of legal obligation
- usually developed over time and
- recognized as law (subjective element of opinio juris sives necessitates
Considering that CIL develop over a period of time, can it develop instantly like in 3-5 years?
Yes, as in the case of the North Sea Continental Case
What is held is that short passage of time does not bar the formation of CIL. What is controlling is
- the state practice must be extensive & virtually uniform with regard to the provision which show a general recognition that it is a binding law
TN; 2 elements always
May a State validly exempt itself from the application of a customary international law?
A state, which consistently and from the outset objects to a particular practice is NOT bound by any rule of alleged cil which may arise from practice. (persistent objector doctrine)
what are the elements to validly invoke the ** persistent objector doctrine/ dissenter doctrine**?
LB
As held by the ICJ in UK v. Norway
- The objection by the state objector/dissenter must have been done before the norm ripened into CIL or at the beginning.
- The objection must be consistent
- objection must be [cce] clear, categorical, and equivocal dissent must be shown
