Section 2 - Customary law Flashcards
How does customary law emerge?
Customary law consists of the rules that emerge from the experiences of states over time as they try to resolve interstate problems. As the international society of states has built up, older states have socialized newer states with the rules already developed. For most states of international society, their official statements, court decisions, legislative acts, and diplomatic behavior will reflect that these states do, indeed, accept international society’s customs. = general practice accepted as law.
What is opinion juris?
legal rule that it is necessary to obey
what is the word used to describe when customary law becomes treaty law?
the law becomes codified (codification)
What are the two main questions which must be answered to evaluate whether something is customary law?
The number question - how many states use/obey this rule?
the time question - The traditional approach requiring a long period of time for a customary rule to take hold is underscored by the Paquette Habana and Lola case.
Please describe the Paquette Habana and the Lola Case
SCOTUS recognise the superiority of customary intl law
they found that evidence that the practice extended multiple years into the past.
common practice to find evidence in support of opino juris. here, they go back 5-6 centuries.
here we had a court saying 100y of consistent practice was enough to give space for intl customary law, and it was based on opino juris
Supreme court opinion, 1900
Should a fisher from Cuba’s cargo be seized bc war between Spain/US?
she was unarmed, unaware of embargo, cooperative, fished on the coast of Cuba, lived in Havana,
what is a peremptory norm, and what is the latin word for it?
Jus cogens → peremptory norms.
peremptory norms are a form of customary norms, and they are diff because consent is irrelevant for their existence. they are obligated independently on whether they want. list is relatively short. obligation not to commit genocide is a peremptory norm, not to commit torture
who makes peremptory norms?
Intl community as a whole. only form of hierarchy that exists in IL, aka if two norms clash and one is a peremptory norm, then it takes preference. not true for any other norms
What arre an example of hierarchy between two rules in customary/treaty law?
time rule: if you have to complete norm, time rule is you will refer to the newer one. new trumps old
lex specialis rule: the more specific rule prevails over the more general rule
ie, bilateral treaty would trump geneva convention.
treaty (more precision) > custom (less precision)
Please describe the North Sea continental shelf case (1969)
Dispute submitted on 20 February 1967, Denmark and Netherlands v. Germany
Parties asked court to state principles and rules of intl law applicable. the countries would do the delimitation after on that basis.
Decisions:
- court rejected equidistance principle of Article 6 1958 Geneva Convention on Continental Shelf
- FRG hadnt ratified it, and thus wasnt legally bound by article 6
- equidistance principle wasnt part of intl customary law.
- each party had an original right to areas of continental shelf constituting natural prolongation.
- Lines should be drawn with equitable principles
Court decided to join proceedings of the two cases and decided in single judgement.
In 1971, Germany, Denmark, and the Netherlands concluded treaties based on the ICJ’s guidelines, resolving the issue amicably.
On 28 January 1971, Germany concluded separate treaties on the continental shelf s delimitation with Denmark and the Netherlands; a tripartite protocol was made on the same day
