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 !
