Sources of International Law Flashcards
Is there a main procedure for making law in international law?
No
Explain the Lotus Principle
-States are free to act they see fit
-Unless there is a leg. rest. of their conduct
-cannot assume the existence of an obligation
-just because it seems natural=/ intl law
Where can the statute outlining the sources of law which the ICJ consider be found?
-art. 38(1)
-ICJ Statute
Explain what the two elements of Customary International Law are?
-evidence of GENERAL PRAC. (obj.)
-accepted by law (sub)
-wording of ICJ Statute
Explain the subjective part of CIL
Subjected element–> “accepted as law”
-opinio juris
-feel that it is a legal obligation, not just acknowledging that its a custom
-(C77) North Sea Continental Shelf Cases
Which ruling clarified what Customary International law was?
North Sea Continental Shelf Cases
Explain the facts of the North Sea Continental Shelf Cases-
-Den. + NL both want equidistance rule to apply
-they’ve signed the convention
-Germany did not
-but they want them to !!
-no convention signed= have to prove CIL
Explain the judgement of the North Sea Continental Shelf Cases
-Court: it’s not CIL–> no opinio iuris sives necessitas
When does law-making occur in CIL?
-1.obv the general requirements
-2.when states break CIL and claim its because of CIL/IL
-modification of law because of opinio iuris (+ state practice)
When does law-breaking occur in CIL?
- violate it
-no claim its IL
-or no valid claim opino iuris + state practice is met
Explain the stringency of the requirement of state practice
-not super rigorous
-ICJ Military and Paramilitary Activities in and Against Nicaragua
-C.186
What are the type of treaties?
-Bilateral treaties
-Law-making treaties
-Constitutive Treaties
Explain what a bilateral treaty is
-treaty between two states
Explain what a law-making treaty is?
-treaties with multiple parties
-codify or create international law
What is a constitutive treaty?
- treaty establishing international institutions
Can VCLT be applied retroactively?
-No (art.4 of VCLT)
Describe the requirements of a treaty under the VCLT
-Art.2 of VCLT
-intl agreement
-those not governed by VCLT is governed by CIL
-Written
-not governed by dom. law (intl law)
What are the two basic principles of the VCLT
-1.Binding nature found in explicit consent
-Consent to be bound
(Art.11-17 VCLT)
-cannot assume consent (lotus principle)
- 2.Pacta sunt sevanda
-Agreements shall be respected
-Treaty IN FORCE binding upon the parties
-must be performed in GOOD FAITH
Where are the requirements of a treaty found in the VCLT
Art.2
Explain what Pacta Sunt Servanda is
2.Pacta sunt sevanda
-Agreements shall be respected
-Treaty IN FORCE binding upon the parties
-must be performed in GOOD FAITH
Explain the principles of consent to be bound
- 2.Pacta sunt sevanda
-Agreements shall be respected
-Treaty IN FORCE binding upon the parties
-must be performed in GOOD FAITH
What is the power of law CIL v. treaties
treaties> CIL
Is there the principle of stere decisis in International Law
-no
Are there sources of international law beyond art. 38
yes !
List the sources of international law beyond art.38
-Unilateral declarations
-Soft laws
-UNGA resolutions
Where can the law affirming the legal power of unilateral declarations be found?
Nuclear Test Case (C43)
Explain monism
International law has direct force in national law as its ORIGINAL form (international law)
Explain dualism
Transforming international law into the national system to make it official in the form of NATIONAL law
