Sources of international law Flashcards
What is the purpose of sources of international law?
To understand which rules exists
What kinds of rules exist?
- Primary rules: rights and obligations of states/international actors
- Secondary rules: rules that indicate how priamry rules are created, interpreted and enforced
Where can we find the sources of international law?
In article 38 of the ICJ Statute
What are the sources of international law acording to art 38 of the ICJ statute?
- International conventions
- International custom
- General principles of law
- As subsidiary means: judicial decions and teachings of of the most highly qualified publicists
Where do we find law of treaty?
Vienna Convention of 1969
Relationdhip between international treaties and international customary law
Treaty provisions can reflect custom, in that case they are binding also for states not party to the treaty
Definition of a Treaty
International agreement concluded between states in written form and governed by international law
Articles to remember from Vienna Convention
- Art 24: no obligations/rights for States not party to a treaty
- Art 26: Pacta sunt servanda
Definition of international custom
International custom as evidence of a general practive accepted by law (state practice + opinio iuris)
Definition state practice
general and consistent practice by states
Definition opinio iuris
Acceptance of a practice
International custom is binding for
All states, even if
- did not partecipate in the formation of custom AND
- did not object to it during its formation
International custom is not binding if
- persistent objector doctrine
- There is local customary law about the issue
How state practice is formed
A state asserts a right by effective practice. At this point the affected states can
- adfirm its legality
- oppose to it
- be acquiescent
When are general principles of law applied?
When there is no treaty/custom on the topic (never happened for now)
General principles of law: 2 interpretations
- Principles common to majority of domestic systems
- Principles that all states agree upon (es pacta sunt servanda)
Criticism General principles of law
On the art it says “… as recognized by civilized nations”, are some nations more equal than other?
Judicial decisions have to be used in accordance with…
Art 59 of Statute of the ICJ: decisions of the court has binsing effect only among the partues involved and in respect of the particular case
Criticism to judicial decisions as subsidiary means:
de facto can produce IL
What is missing from art 38?
Unilateral declarations
Equity
Soft law
Resolutions from UN Security Council
Jus congens norms
Resolutions from UN General Assembly
Resolution from UN GA are not binding, can they be sources of law?
Yes in
- indicating that opinio iuris has emerges
- establishing the existence of a rule
Jus cogens norms, art
53 Vienna convention
Ju congens norms, definition
peremptory norms of IL from which no derogation is permitted
Actors of IL
States
States empowered entities (ICJ, WTO…)
Non state actors
- NGOs
- individuals -> can be prosecuted
- international organizations
Dates of ICJ and its statute
ICJ -> 1947
Statute is copy of Permanent Court of Justice’s one -> 1920
Characteristics of public international law
- Issues of public concern
- multiple actors
- decentralized
What does it mean that IL is decentralized?
- based on consent
- no central authority
Definition public international law
Rights, obligations and relationships between sovereign sates and international actors
Main issue with IL
Fragmentation
Hierchy of norms: priority given to
Lex specialis to lex generalis
lex posterior
jus cogens
