Lecture 5: Sources of international law Flashcards

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1
Q

Ex aequo et bono

A

= according to the right and good

Power for the ICJ to decide cases based on what they feel is right without reference to any rule of positive law. A small remnant of natural law, but seldom used

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2
Q

What is generally considered an authoritative source of IL

A

Article 38(1) of the Statutes of the ICJ

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3
Q

The rules relating to treaties are part of what

A

Customary IL, but codified in the Vienna Convention on the Law of Treaties which is viewed as the authoritative restatement/positive law of treaties

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4
Q

Philosophical debate: are treaties law?

A

Strictly speaking, some argue that treaties are not sources of law as much as they are a source of obligation under the law, binding on its parties

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5
Q

Pacta sunt servanda

A

= Agreements must be kept

Most important rule of customary IL, saying that treaties have to be obeyed because agreements/promises must be kept

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6
Q

Who can treaties bind?

A

Parties to the treaty (although non-parties can choose to abide by the rules if it benefits them or they see the rules as part of customary IL)

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7
Q

What can treaties do?

A

Pretty much anything, except authorize the violation of a peremptory norm such as genocide, piracy etc.

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8
Q

Is there a distinction between “law-making” treaties and “contractual” treaties?

A

Not really, all treaties are contractual in they either make new rules and principles or create new obligations

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9
Q

Who can make a treaty?

A

Treaties are written and made between states represented by people authorized to do so

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10
Q

How can treaties be distinguished from other international agreements?

A

They are legally binding

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11
Q

6 key components of a treaty

A
  1. Preamble
  2. Signatories’ names (sometimes)
  3. Main body
  4. Signatures/seals
  5. Reservations (if possible - disagreements with certain provisions)
  6. Protocols (amendments made to treaties afterwards, do not necessarily apply to all countries?
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12
Q

Treaties are not binding until…

A

The parties have ratified it domestically either by the executive or the legislature (but in the meantime states are not supposed to do anything that defeats the purpose of the treaty)

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13
Q

Treaties in monist vs. dualist systems

A

In monist systems, treaties do not need to be translated into municipal law - they have immediate effect once ratified and become part of domestic law

In dualist systems, domestic legislation is required to translate the treaty obligations into municipal law

Some states have a mix of the two

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14
Q

3 ways that treaties can end

A
  1. On its own terms (self-termination, expiry, disappearance of essential conditions)
  2. By withdrawal/denunciation
  3. In response to serious breach by one party (but should be a last resort)
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15
Q

For a custom to become law, these 2 elements have to exist

A
  1. Evidence of widespread and settled state practice (actions, domestic courts and legislatures, public statements)
  2. Opinio juris: States adhere to the custom because they believe they have a legal duty to do so
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16
Q

Opinio juris (and critique)

A

States adhere to a custom because they believe they have a legal duty to do so (e.g. they believe they are legally bound to do so, not because it’s nice to do)

Somewhat artificial as it implies states have a collective mind and intentionality of its own

17
Q

In what 2 ways can you avoid customary IL?

A
  1. If enough countries persistently breach the law, the breach can become normalized and your new practice becomes law
  2. One state can prevent being bound by an emerging rule of customary IL by acting as a persistent objector (e.g. silence is not enough, must voice objection persistently)
18
Q

When is customary law inferior?

A

For parties to a treaty, e.g. if a treaty and customary IL has different/contrasting rules, the treaty replaces the customary rules for the parties but not for non-parties

19
Q

What are the 2 views of the ‘general principles recognized by civilized nations’?

A
  1. Principles found in most or all municipal law systems, but which do not exist as positive IL
    OR
  2. Also includes very basic legal principles such as pacta sunt servanda (agreements must be kept)
20
Q

How can judicial decisions and writings of publicists be a source of IL?

A

It is not a source of law, but a source for determining what a law is in a given situation

Can only be used as subsidiary means, because they are usually derived from the other 3 sources of law

21
Q

Are there precedents in IL?

A

No, there are no binding precedents! Judicial decisions are only binding in that specific case for the parties involved

But ICJ has a tendency to cite itself regarding the content of customary IL

22
Q

What are the 4 main sources of IL?

A
  1. Treaties
  2. Customary IL
  3. General principles recognized by civilized nations
  4. Judicial decisions and writings of publicists
23
Q

What are 3 other, less important sources of law?

A
  1. Resolutions of UNGA, although not binding
  2. Studies produced by International Law Commission, even if not adopted
  3. UNSC creating specific obligations (but not new law in itself)
24
Q

Ius cogens

A

Peremptory norms that all countries must obey:

  1. Wars of aggression
  2. Genocide/crimes against humanity/apartheid
  3. Slavery/torture/execution of juvenile offenders
  4. Oiracy
25
Q

Lex specialis and lex posterior

A

Principles of hierarchy in IL:

Lex specialis: The specific rule prevails over the general rule

Lex posterior: The more recent rule overrides the earlier rule

26
Q

Does customary law always prevail over treaties?

A

Treaties are assumed to be lex specialis over customary IL

But if a customary rule is peremptory, it overrides the treaty