Sources

Question 1

Statute of the ICJ, art38(1)

Answer 1

Sources:

(a) INT conventions, whether general or particular, establishing rules expressly recognised by the contesting states
(b) internaitonal custom, as evidence of gneral practice accepted as law
(c) the general principles of law recognised by civilised nations
(d) judicial decisions and teaxaching of hgghly qualified pubicists of the various nations, as subsidiary means for determination of rues of law

Question 2

Priority of the Sources

Answer 2

D holds lower herarchical position and is subsidiary of the other sources
A B and C are of eual legal value, but there is practical hierarchy of application
General principle that the special rule is applies over the general rule, so look to T first, then CIL, then GP

Question 3

“Formal” and “material” sources

Answer 3

Formal sources are the 4 sources

Material sources are the actual documents that = Ts, of the SPs that demonstrate CIL (the manifestations of the sources)

Question 4

“Lotus presumption”

Answer 4

The SS Lotus (1927)
Nature of “sovereignty” in IL
Ss are free to do whatever they are not prohhibited from doing
So if we can’t find a rule, original background rule = you can do it
Bu there is additional background to the background rule. E.g. you can make anything criminal, but can’t criminalise stuff in other’s territory. Except when you can.
Useful in most, but not all, contexts

Question 5

A complete system?

Answer 5

Generally recognisd as complete, as can fall back on LP, or GP
One case in lat 90’s that throws that inot doubt
But really, there is no non liquet in IL

Question 6

Classical theoretical basis of binding force in IL

Answer 6

The SS Wimbledon (1923)
Ss = free to accept limitations on their actions
Based on this theory IL is based on S consent
If S no accept rule not binding on them
Lotus, 18
Manner of expressing consent and precisely what the S must e taken to have consented to = sticking points
Meaning of “legal positivism”

Question 7

What are Treaties?

Answer 7

Specific formal agrements between competent parties
Almost always written
If two parties = bilateral, if more “multi-lateral”
Only bind parties to them
Cannot create obligations or take rights of 3Ps who don’t agree to them

Question 8

Who can contribute to CIL?

Answer 8

States alone are uncontested in formal capacity to contribute to formal capacity to contribute to formation and modification of CIL
Maybe in specific area of law of IO, they can contribute to development of this area only. Only alleged by certain parties, not accepted by all.

Question 9

Scope of binding force of rules of CIL?

Answer 9

CIL is binding on all Ss, or at least all that hve not maintained position of persistent objection.
In vast majority of cases, binds all Ss
Persistent objctor status = controversial

Question 10

Asylum Case (Colombia vs Peru)
re creation of CIL

Answer 10

“General practice accepted as law”

C hopes to rely on alleged custom or practice peculiar to Latin Americann States. Must prove that this custom is established such as to be binding on other party. Rule must have constant and uniform usage, which is expression of rights and duties of the parties

Question 11

Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), para 55
re creation of CIL

Answer 11

North Sea shelf made clear need SP and OJ to have rule of CIL
Continental Shelf said its axiomatic that we find CIL in SP and OJ, not MLTs, even though those can play important role too
What kind of thing = SP? National court judgments, legislation, claims advanced by Ss before foreign courts, staments made to ILC and in context of adoption of UNC
What kind of thng = OJ? Assertions by Ss in claiming x that IL accords them right to x, acknowledgment by S granting x that IL requires them to do so, converse assertion by another S that there is right of y
If S does X more extensive than required by IL, might not be accompanied by OJ, so doesn’t help
Here, x = grant of immunity

Question 12

What kind of stuff can constitute State Practice?

Answer 12

Any conduct of an organ of the state (legislature, judiciary executive)
What = conduct? Actual actions (e.g. sending armies), Acts of Pt, courrt decisions
Can have oral and written conduct
Nonfeasance can be SP
State’s reaction to acts of another S = SP

Question 13

Number of States requirement for General Practice

Answer 13

Need not be universal, and noumber requirements is not mathematic or consistent. Must be representative number of Ss

Question 14

Repetition requirement for General Practice

Answer 14

Got to do it enough

Vague

Question 15

Political, economic, regional etc representativity of states

Answer 15

North Sea Continental Shelf
Lachs dissent: Only 70 Ss engaged in exploration of continental shelf, its those Ss who are important to SP
Sorensen: Significant that the Ss which have become parties to the convention are fairly representative of all geo regions of the world and are of different economic and social systems
Texaco Overseas Petroleum v Libya

Question 16

“Specially affected” states

Answer 16

Have to have SP of the states that are affected more so than others
Bc f it doesn’t affect you you are less likely to consider the harm etc, would other wise not really have S consent, participatory democracy idea that even if not in majority your voice still matters
Powerful Ss almost have a veto

Question 17

North Sea Continental Shelf paras 73-4

re specially affected states

Answer 17

Even without passage of considerable time, a very widespread and representative participation might be enough, provided it includes the specially affected Ss
Although pasage of only a short period is not necessarily a bar, within that period SP, including of those specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and sould moreover have occurred in such a way as to show a general recognition that a rule of law or legla obligation is involved

Question 18

North Sea Continental Shelf, 175 diss op Tanaka

re specially affected States

Answer 18

To decide whether SP and OJ exist is delicate and difficult matter
Repetition, number of examples of SP, duration of time required for generation of CIL “cannot be mathematically and uniformly decided”
Each fact requires to be evaluated relatively according to different occasions and circumstances

Question 19

North Sea Continental Sheld, diss op Lachs 229

re specially affected states

Answer 19

The evidence should be sought in the behaviour of a great number of States, possibly the majority of States, in any case the great majority of the interested States

Question 20

Duration

Answer 20

Can have short time rule, but need more Ss
Time in itself is not fatal to creation of rule of IL
North Sea Continental Shelf, para 74, short time may suffice proovided “very widespread and representative participation”, practice “should have been both extensive and virtually uniform in the sense of the [rule] invoked”

Question 21

What is Opinio Juris?

Answer 21

Sometimes we mean the right sort of subjective belief, sometimes we mean any.
Not enough to have SP, need conviction that action comports w rule of IL
Either that they believe they are obliged to do the thing they are doing, or that they have a right to do it at IL

Question 22

SS Lotus Case, 28

re OJ

Answer 22

French Gvt tried to sy that rarity of collission cases being tried in criminal courts showed tacit consent on part of Ss that shows what IL is in collision cases
Court says no, merely shows that they have abstained, not that they recognise themselves as being obligd to do so
Only if their abstention was based on their being conscious of having a duty to abstain would it be possibe to speak of INT custom

Question 23

North Sea Continental Shelf para 77

re OJ

Answer 23

To have OJ, two conditions must be fulfilled
Not only msut acts amount to settled practice, must also be such/carried out in such a way as to be evidence of a belief that practice is rendered obligatory by existence of a rule of law
Need for such belief i.e. subjective element = implicit in very notion of OJ

Question 24

Military and paramilitary acitivies in and against Nicaragua (Nicaragua v United States of America) Merits para 207
re OJ

Answer 24

As in North sea, for new customary rule to be formed, not only must the acts amount to settled practice, but must be accompanied by OJ
Either the S taking such action or other States in position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is obligatory under rule of law

Question 25

Onus of demonstrating OJ

Answer 25

North Sea: ‘acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature’
but also: ‘the general practice of States should be recognized as prima facie evidence that it is accepted as law’ but ‘[s]uch evidence may, of course, be controverted’ (North Sea, 231 (diss op Lachs); see also ibid, diss op Tanaka) and diss op Sørensen)
So basically it will depend on things like what kind of rule it would be. If breakign o prohibition, might take that as evidence that the party believes there is an exception eg.

Question 26

How is new CIL created?

Answer 26

“accepted [or acceptable] as law”
OJ can sometimes be belief that something should be law, rather than that it is.
States don’t say this directly in practiec though, and instead if they want a change in CIL, they say that is how it already is

Question 27

Effect pf breach of CIL

Answer 27

Nicaragua, para 186
Not to be expected that SP be perfect. Sufficient that conduct in general be consistent w rules, and instances of conduct inconsistent rulw is treated as breach, not indications of recognition of new rule
para 207
For new rules, SP must be accompanied by OJ
Either S takign the action, or other Ss in position to react must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by existence of law requiring it”
Reliance on novel right/exception, if shared in principle by other Ss, might tend towards modification in CIL

Question 28

Relationship between Treaty and CIL

Answer 28

CIL, then Treaty: Derogation from CIL inter se via treaty, r codification via treaty
Sometimes negotiation of treaty crystallises CIL
Treaty and subsequent CIL (see different card)
Serial treaty provisions as evidence of CIL? (See different card)

Question 29

Treaty and subsequent CIL

Answer 29

VCLT, art31(3)(c): Try to interpret the treaty in line w new rrule of CIL

Question 30

Treaty as inspiration for subsequent rules of CIL?

Answer 30

North Sea
Para 71: general statement that a treaty can inspire a new CIL rule, or in effect become one
Para 76: but compliance by non-parties does not hve that effect automatically, need more OJ

Question 31

“Baxter paradox”

Answer 31

The more parties to a treaty reduces its force as CIL, bc they then comply due to treaty, rather than CIL
Resolve this paradox w how parties to treaty act re non-parties.
e.g. Criticism of non-party must be based on belief that the treaty is CIL
Also, maybe parties say that thy believe it is CIL (as they do w Geneva Convention)
Nicaragua, para 185: Apart from treaty commitments beinding the parties to the ruel in Q, there are various instances of their having expressed recognition of the validity thereof as CIL in other ways

Question 32

Serial Treaty provisions as evidence of CIL?

Answer 32

No
Ahhmadou Sadi Diallo
2500 investment treaties between tates rounf the world include the rule, surely this shows the rule is customary?
ICJ says no, may even show the opposite
Unless clear from the drafting of the treaty that they believed themselves to be codifying CIL

Question 33

Doctrine of “persistent objector”

Answer 33

e.g. Fisheries Case (UK v Norway)
Even if ten-mile rule was CIL, and even if Norway did not have historic title to her waters, ten-mile rule would not apply to her as she has always resisted any attempt to apply it to her waters
Asylum case (Colombia v Peru)
Even if sucha custom existed between Latin American states, could not be invoked against Peru who, far from having by its attitude adhered to it, has repudiated it be refraining from ratifying the Motevideo conventions, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum
Has implicaitons for theoretical basis of CIL in consent, and whether consent is required fro individual rules, or merely the whole system

Question 34

What is a peremptory norm?

Answer 34

‘a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’ (Vienna Convention on the Law of Treaties, art 53)

A privileged species of CIL (‘supercustom’)
JC is not species of IL in its own right, it is its own privileged species of CIL
Difference between ordinary CIL and JC is that ordinarily states can derogate from CIL, treat out of it, set the rule aside if necessary for population’s survival

Question 35

How is JC formed?

Answer 35

Need SP, OJ that it is CIL, and then OJ that it is JC
Can be modified onyl by subsequent CIL norm of same character. Same process as before, where you need to break the ruel to change it. Extraordinarily unlikely to be able to change it

Question 36

How does sovereignty fit with JC?

Answer 36

Rules of JC are of a “constitutional” status

Explained by the sovereign power of States to bind themselves.

Question 37

What happens is treaty breaches JC?

Answer 37

Vienna Convention says the whole treaty is void

Judicial dicta, however, has suggested that only the breaching provisions are, or that it is not void, but disapplied

Question 38

Persistent Objector status for JC?

Answer 38

Dicta here and there by imaginative judges says you can’t be a PO
But derogation is saying that what is applicable generally is inapplicable here, whereas if you’re a PO it has never been applicable to you so is not a derogation.
Others say that PO status is a derogation, and therefore not allowed

Question 39

“The General Principles of Law recognised by civilised nations”

Answer 39

ICJ Statute, Art38(1)(c)
General principles are those found in common in legla systems across the world (common law, islamic law, hindu law, etc)
General juridical principles, rather than specific rules, which are common to legal thinking itself

Question 40

What are General Principles of Law for?

Answer 40

A “reservoir of principles” (Waldock) for “when positive international law [is] silent on the issue” (Lauterpacht)

Question 41

Example of General Principle being used

Answer 41

Temple of Preah Vihear (Cambodia v Thailand)
Principle of acquiescence/estoppel
Map of border between 2 States was wrong
But State who was disadvantaged by it treated it as accurate for 100 years
ICJ says you have acquiesced, if you treated this as being the case for so long, you can’t do anything about it now

Question 42

Why are General Principles a source of IL?

Answer 42

Binding origins of IL are in States consent, how can we say Ss have consented to ebing bound by pricniples of national character?
One explanation is that everyone has agreed to this set-up (by agreeing to ICJ statute)
More jurisprudential argument is that by agreeing to be part of ILS you implicitly agree to elemental legal reasoning

Question 43

Judicial decisions and scholarly writings

Answer 43

ICJ Statute art38(1)(d)
Decisions as such are only binding on parties to the case (ICJ Statute Art59), but in coming to judgement the court will undergo reasoning that accurate statements of the law can be used in future decisions
Judicial decisions are becoming more important, because it creates predictability and allows States to calibrate their obligations

Question 44

Role of State consent in judicial decisions

Answer 44

AN international judicial decision is only as authoritiative as Ss accept it to be
It is not law, just an authoritiative/persuasive statement of what the other sources say
If Ss aren’t persuaded, it doesn’t have that value
ICJ decisions don’t generally have this value, but good decisions will be regarded as persuasive and correct by Ss
Balance of ICJ will also matter, 15-0 = pretty clear, 8-7 may as well have not been decided

Question 45

Can/do judicial decisions create CIL ex nihilo?

Answer 45

Special Tribunal for Lebanon
In the Mater of El Sayed
“The combination of a string of decision in this field, coupled with … implicit acceptance or acquiescence … clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.”
NB me, but that’s nto really ex nihilo is it? Because INT courts have to base their decisions off of some other thing

Question 46

Legal Scholarship

Answer 46

ICJ never cites academics as a whole, but individual judges might do in their reasoning
Influence of eacademic work is great though, as approx 50% of ICJ judges are fromer academics and IL professors

Question 47

Binding Unilateral Statements

Answer 47

In common law this would be a gratuitous promise and have no effect, but these are pretty common in civil law

Question 48

Nuclear Tests (Australia v France)

Answer 48

It is well recognized that declarations made by way of unilateral undertaking, concerning legal or factual situations, may have the effect of creating legal obligations.
An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.
nothing in the nature of a quid pro quo nor any subsequent acceptance of this declaration, nor even any reaction or reply from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement of the State was made.

Question 49

Intention in Unilateral declarations

Answer 49

‘[I]t all depends on the intention of the State in question’ (Frontier Dispute (Burkina Faso/Mali)
Intention ‘is to be ascertained by the interpretation of the act’ (Nuclear Tests, 267, para 44)
‘It is from the … substance of these statements, and from the circumstances attending their making, that the legal implications of the international act must be deduced’ (Nuclear Tests, 269, para 51)
‘the question of form is not decisive’ (Nuclear Tests, 267–8, para 45).

Question 50

Clear and specific terms in Unilateral Declarations

Answer 50

‘[A] statement of this kind can create legal obligations only if it is made in clear and specific terms’ (Armed Activities on the Territory of the Congo).

Question 51

Context in Unilateral Declarations

Answer 51

‘the circumstances attending their making’ (Nuclear Tests, 269, para 51)
Frontier Dispute (Burkina Faso/Mali), 574, para 40;
In Nuclear Tests, French President made a formal public announcement conveying an intention to cease the tests. Moreover, there was no way in which the country could be bound other than by a unilateral declaration. Here, there was nothing to sotp an agreement re the border being made, so there are no grounds to interpret the Mali HOS's statements as a binding unilateral declaration.

Question 52

Relevance of person making statement to Unilateral Declarations

Answer 52

Armed Acitivites on the territory of the Congo (New Application)
Not everyone is capable fo binding the state
In IL 3 persons are per se capable: HOS, HOG, MOFA
May also include other persons representing a State in specific fields authorised to bind the State w their statmtents in amtter falling w/in their purview (eg holders of technical ministerial portfolios in their field of comeptence in the are of foreign relaitons).

Question 53

Why are Unilateral Declarations binding?

Answer 53

Nuclear Tests, 268, para 46:
One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested states may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.

Basic, but perhaps unconvincing, general principle.
No UDs have been found binding since.

Question 54

Decisions of the UN Security Council

Answer 54

Not sources in own right, but are manifestation of treaty (the UN Charter)
By agreeing to CHarter, parties agree to be subject to UNSC decisions
UN Charter Art25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
Art103: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.