International Law

Question 1

When was article 38 established?

Answer 1

1920

Question 2

Points of article 38

Answer 2

1. coventions to be recognised by consenting states
2. general principles of general practice accepted as law
3. general principles of law accepted by civilised nations
4. article 59 teachings of highly qualified publicists used as subsidiary means for determination of rules of law

Question 3

Primary sources of IL?

Answer 3

1. treaties
2. customary law
3. general principles of law

Question 4

Features of a treaty?

Answer 4

• Is legally binding! Some states may sign a treaty but not ratify to create a diplomatic illusions or because the domestic government didn’t approve it but without ratification it is not legally binding eg: US signed but didn’t ratify Vienna Convention on the Law of Treaties.
• often treaties need a certain about of ratifications to become legally binding even for the ones that have already ratified.

Question 5

Use of treaties?

Answer 5

for state deals, ambition of legislative nature or to create institutions such as the UN.

Question 6

Features of Customary law?

Answer 6

• general practice: long use
• accepted as law: general practice must be also accepted as law (opinio juris), separates law from other normative control systems.

Question 7

What does is opinio juris?

Answer 7

codifies legal norms into customary law, without it is not ICL.

Question 8

Name some examples of general principles of law.

Answer 8

‘good faith’

no one should be judge in their own case

not tried for same crime twice,

no crime without law.

Question 9

examples of ICL.

Answer 9

ICJ Nicaragua vs USA in 1986.

Question 10

Name some secondary sources of IL.

Answer 10

1. Judicial teachings by scholars

Question 11

opposition of IL

Answer 11

consent and persistent objector: state can object to be excluded from law and if enough object they can prevent it being ratified.

• reservation- unilateral declaration that a state wants to eliminate legal effect of a certain part of a treaty!

Question 12

features of IL.

Answer 12

1. no general enforcement mechanism, makes it often insufficient and selective practice.
   - debates on whether IL is ‘real law’ or ‘positive morality’ (e.g. J. Austin).

Question 13

Name the central treaties in IL.

Answer 13

1. UN Charter (principles in article 2)
2. vienna convention on the law of treaties 1969 (codifies customary international law)
3. UNCLOS 1982 regulates international law in the seas “constituion of the oceans”.
4. specialised HR treaties (migration one is one of the least ratified ones).

Question 14

Features of the UN charter

Answer 14

• The Organization is based on the principle of the sovereign equality of all its Members.
• All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
• All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
• not legally binding (but some can be considered customary law so some can be)

Question 15

definition of Jus Cogens

Answer 15

The principles which form the norms ofinternationallawthatcannotbesetaside

Question 16

Exceptions to the validity of treaties.

Answer 16

• any treaty that goes against this or unethical practices such as coercion makes a treaty invalid. art 51
• art 62- change of circumstances.

Question 17

Methods of interpretation of treaties.

Answer 17

• textual method- the object meaning of text
• historical method (secondary to the others)- intentions of drafters.
• teleological method- desired end goal of drafters (evolutive)

Question 18

what is the difference between custom law and treaties?

Answer 18

CIL everyone is bound while treaties only signuturies are bound. Exceptions: special or local CL where it only binds a group of defined states or persistent objector doctrine.

Question 19

debates in HRL

Answer 19

universality vs cultural relativism

Question 20

Definition of legal positivism

Answer 20

law is only what states have agreed to. doesn’t favour ‘soft law’.

Question 21

Name the 3 new critical theoretical approaches

Answer 21

1. femininism
2. Third World approaches to International Law (TWAIL)
3. Critical legal studies

Question 22

How can IL be enforced?

Answer 22

• Sanctions
• Articals on state responsability (ARSIWA) codifies customary law.
• some treaties have elements of CIL so non-ratification does not exclude states from being held accountable.

Question 23

describe the 2 approaches to The Relationship (or Hierarchy) Between International and Domestic Law

Answer 23

monism and dualism

Question 24

define dualism

Answer 24

In dualist countries, the idea is that International law norm in order to produce effects in domestic courts must be incorporated in domestic law as well. (Example: UK – 1998 Human Rights Act)

Question 25

define monism

Answer 25

As the name suggests, the monist approach considers laws as a single entity, and they are against the idea of separating these two branches as international and municipal laws. international law forms part of the domestic legal order and may be directly applied by the courts, provided that the provisions concerned are of an self-executing character.

Question 26

explain the process of state succession and continuity.

Answer 26

- In the case of state continuity the state as subject of IL remains the same, notwithstanding turmoil (for instance loss of territory, revolutionary change of government, temporary occupation and illegal annexation). - In the case of state succession the old state has been finished and thenew one inherits certain of its rights and obligations. - annexation is against IL as a means of persueing politics eg Crimea

Question 27

What is the 'Law of responsibility'?

Answer 27

allows an entity to be blamed for wrong doings (states, NGOs, liberation movements international organisations) but most laws are to do with state responsibility.

Question 28

when was the 'Law of responsibility' established?

Answer 28

established in the PCIJ in 1920 in the Chorzow factory case.

Question 29

How is the 'Law of responsibility' defined and distinguished?

Answer 29

distinguished from liability (financial obligation) and accountability (answer for their actions)

Question 30

what are the 2 basic principles of responsibility?

Answer 30

1. states held responsible for acts that attribute to them. 2. can only be held accountable for **internationally wrongful acts that violate their international obligations.**

Question 31

define the idea of attribution.

Answer 31

state only held accountable if officials use mechanisms outside their scope and not for the private acts of citizens.

Question 32

how does the the law of responsibility relate to private acts

Answer 32

may be held responsible if they have indirect influence eg 1980 Tehran hostage case: Iran found liable not for the holding of the hostages but for not providing protection to the U.S. embassy under international law. - also if a state is found to outsource atrocities to non-governmental groups or actors they will be found liable. - insurrection movements the state will be held accountable if they succeed to prevent a power vacuums.

Question 33

permissible uses of force or breaking HR

Answer 33

Circumstances precluding wrongfulness (articles 20-25 in the articles of state responsibilities): Conduct takes place with the consent of state, self defense, lawful countermeasure, political necessity (easy to abuse so comes with strict conditions in art 25 defined as essential interest under ‘grave and imminent peril’).

Question 34

list the mechanisms of taking responsibility.

Answer 34

1.restoration of status quo 2. compensation 3. satisfaction (acknowledgment).

Question 35

who are are states responsible to?

Answer 35

often obligations to another state (bilateral obligations), but HR do not always fit into this model so can answer for wrongdoings towards international community (egra omnes).

Question 36

features of responsibility of International organisations

Answer 36

ollow similar principles as a new set of rules would be problematic. But they have differences like they don't have sovereign territories so they are only subject to some laws. eg: where does responsibility lay for the actions of a British UN peacekeeper (UK or UN). European Court on violations of peacekeepers in Kosovo, although attributed to UN has no jurisdiction over UN.

Question 37

Features of individual responsibility

Answer 37

no primary and secondary rules as with other forms.

Question 38

Features of shared responsibility

Answer 38

acknowledging that acts often rely on the support of other actors, not just an individual.