Session 2 Flashcards
Which article is the cornerstone of international sources of law?
Article 38(1) which gives definition of
- international conventions
- international custom
- general principles of law
- judicial decisions nd the teachings
Give a conventional formation of international law?
A treaty
Give the different firms of non-conventional formation of IL and examples
Spontaneous (custom) and voluntary (unilateral acts)
Which article states that international agreement have to be registered?
Article 102
What is a treaty?
An explicit agreement signed and ratified by subjects of internal law.
It is legally binding and requires the express consent of the parties.
What is custom?
Source of law, which derives from the practice of state, but also legal consciousness of states.
What are he two elements required to prove that something pertains to customary law?
- A repetition of practice (material element) adopted by states: usus longaevus, consuetudo (material element)
- Legal conviction: (opinio juris) a legal belief by the state that such a practice is legally binding. The act they are adopting = mandatory, because the law requires them.
What is a persistent objecto?
A state raised an objection against the creation of a customary norm but did not succeed to prevent its emergence -> it is exempted from its effects, the custom does not apply to it.
In what cases can’t a state oppose to customary rule?
In cases of jus cogent.
What are general principles of law?
- Principles which are common to various national legal systems and are transferred to international legal order
- Function: to fill up the gaps of the conventional or customary law and to evade the non liquet at international jurisdictions
What article says what about “rule ex aequo et bono”?
Art 38;
• Clauses of judgement in equity: usually in a compromise between parties on a terriotial dispute, or with respect to ussues of responsibility
• To fill up gaps in law -> cannot set aside positive law and rule contra legem
What is a unilateral act?
• Act imputable to a single subject of IL
What is a joint non-conventional acts?
instruments resulting from a negotiation between persons authorized to bind a State and to frame their relations with no obligatory effect . No pacta sunt servanda; but called a gentleman agreement.
Lex specialis derogat generali
special rule prevails over a general rule
Lex posterior derogat priori
rule whis is later in time has priority
