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3. International Law > 7. Sources, Treaties > Flashcards

7. Sources, Treaties Flashcards

1
Q

Custom and usage intro part

A
  1. Custom
    - general prescriptive rule of behavior
    - evry primitive society subconscious rules upheld by social pressure.
    - test of time - aura of historical legitimacy- develop as rules
  2. Usage - international habits which has not yet recieved the force of law.

Starke- custom begins when usage ends.
2 tests
1. Material test - continuity, repetition, sufficiently uniform state practice
2. Psychological- opinio juris – conviction that there is a compulsory rule behind such recurrence
3. Generality of practice - followed or repeated by a large number of states. However universality is not needed

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2
Q

Gpl intro

A

Non liquet, proceed to declare a rule held to be relevant by analogy

Icj considers the following before considering the rule
1. Is it a GPL. is not limited in scope
2 . Must be recognized by most of the states
3. GPL includes substantive as well as procedural principles

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3
Q

Cases where GPL used

A
  1. Chor zow factory- indemnity
  2. Nuclear test case - pacta sund servanda
  3. Bosnia vs serbia - resjudicata
  4. Diversion of water from meuse case - principle of equity
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4
Q

Cases where GPL used

A
  1. Chor zow factory- indemnity
  2. Nuclear test case - pacta sund servanda
  3. Bosnia vs serbia - resjudicata
  4. Diversion of water from meuse case - principle of equity
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5
Q

GPL conclusion

A

Due to gaps in IL- comoetence of court cannot be confined to making judgement acc to treaties and customs

Brierly- gpl- dynamism

Lauterpacht - safety valve rather than frequent application

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6
Q

Define treaties

A

Prof schwarzenberger - agreement between subjects of IL creating a binding obligation in IL

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7
Q

Pacta sund servanda

A
  1. Anzilotti- follow in good faith
  2. Lauterpacht- customary law
  3. Art 26- in good faith
  4. Art 27 - cannot justify non performance by invoking ml
  5. Exception- civil war, rebus sis standibus, 48-52– error, fraud, corruption etc. , violation of jus cogens, territory ceded or merged
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8
Q

Steps generally adopted in concluding a treaty

A
  1. Appointment of representatives- full power
  2. Negotiation and adoption
  3. Signing
  4. Ratification- sign of representatives confirmed by states
  5. Accession - non signatory becomes party to the treaty
  6. Entry into force - acc to the provisions of the treaty.
  7. Reg with sect gen - 102 . So that it can be invoked before ICJ
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9
Q

Define ratification

A

VCLT - international act whereby a state expresses its consent on international plane to be bound by a treaty

Required when treaty explicitly requires it.

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10
Q

Ratification answer framework

A

DEFINITION

PURPOSE

  1. Reexamine and review
  2. State sovereignty
  3. Modify municipal law
  4. Public opinion

MODE
president on advise of COM

REFUSAL

  1. No duty, no need of explanation
  2. No time limit
  3. In the gap dont do anything that fails the objective of the treaty

CONSEQUENCES OF NON RATIFICATION

  1. Art 39,41- SC can pressurize
  2. Palestine mavrommatis case - effective only on ratification is old
  3. North sea continental shelf case - bound even if no ratification- customary international law
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11
Q

Reservation

A

State accepts part of a treaty thereby excluding the legal effect of certain provisions of the treaty. More potent in ml treaties, fragmenting into bilateral treaties of various contents

Procedure

  1. Bilateral - end
  2. Ml- unless prohibited. No need if consent for all

Modern practice- can. Relation between those not opposing and the state - provisions of the treaty

GENOCIDE CONVENTION CASE
1. Opposee by one or more states not opposed by other – party
2. Compatible to the provisions- party
3 . Non combatible – not party

VCLT

  1. Expressly authorized by the treaty,, no need of subsequent acceptance
  2. If no objection has been raised by 12 months

Diff cultural, economic , social..

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12
Q

3 cases for treaties and 3rd parties

A
  1. Genocide convention case - treaties can impose obligations upon state not party
  2. Free zone case. +– free customs zone, French ml, swizz accepted. Now cannot be deprived of rights without consent
  3. customs - art 38-
    North Sea continental shelf case - provisions of a treaty can be of norm creating character
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13
Q

Jus cogens

A

Art 53 - void if violates Preemptory norms

Essential

  1. Recognized by all
  2. From which no derogation is possible
  3. Can be modified only by a subsequent norm ( art 64)

3 types
1. Common interest - pacta sund servanda
2 humanitarian purpose - slavery
3. Un charter

Cases
1.genocide convention case
2 Barcelona traction case - principle of self determination – jus cogens

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14
Q

Rebus sic standibus

A
  1. Treaty can be terminated if fundamental change in circumstances
  2. Art 56 of ICA
  3. ART 62(1) - change to the circumstances existing at the time of signing, fundamental change, essence of consent, must not have been forseen
  4. 62(2) - treties involved in fixing territorial boundaries cannot invoke this treaty.

Ex: island submerged

Fisheries jurisdiction case - customary rule
Change in circumstances doesn’t automatically nullify. Gives party the right to invoke

Agree, confine, to prevent misuse

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15
Q

Terminantion of treaties q

A
  1. By consent of all parties
  2. By denunciation
  3. By new treaty
  4. Material breach
  5. Rebus sic standibus
  6. Provisons - time Or object
  7. New jus cogens
  8. Outbreak of a war
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16
Q

Essentials of contract

A 
1. Sec 10
Free consent (13, 14) 
Competent (11) 
Lc (23) 
Lo (23) 
Not expressly declared void (24-30) (56)
  1. Vage and ambiguous ( art 29)
  2. Written down. If law of land requires
  3. Intent to enter into a legal relation
    BALFOUR vs BALFOUR - family arrangement donot inted legal consequences to follow
17
Q

Can declaration of unga be considered as a source of IL ?

A

Some jurists - political- legal consequences in certain exceptional conditions - some legally binding effect

VIEWS
1. Judge jessup — not truly legislative in nature, however if many similar resolutions regarding a same issue passed- it reflects the international norm existing at that time,, courts should take that into consideration

  1. Manfred Laches ( former ICJ judge ) —-> unga resolutions are “ stepping stone, a stage in the political and legal process, a factor in the devp of IL”
  2. BROWNLIE - some important law making resolutions of unga
  3. Resolution on prohibition of use of NW for war
  4. Principles governing seabed, ocean floor and subsoil thereof
  5. Udhr
  6. Independence to colonial states
  7. Sovereignty over natural resources

3. International Law (14 decks)

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