Sources of International Law Flashcards
What is the hierarchy of sources for international law?
Conventions and treaties Customary International law General Principles of law Judicial decisions Works of Scholars Equity
Give some basic facts about conventions and treaties
1) they can express established custom or
2) become custom after the adoption or entry into force of the treaty (subsequent state practice)
What is customary international law?
what states actually do in relation to one another (Paquette Habana)
What two factors are required for something to become a customary international law?
1) consistent practice of the states where
2) that practice is engaged in out of a sense of legal obligation (opinion juries-regarded as law)
What is a persistent objector?
States who are not bound by international customs because they have passed contrary laws
You must be an objector even before the rule or law was formed
What happens if there is a US law in conflict with international law?
Courts should follow positive US law if it is contrary to international custom, but the courts always try to reconcile these–>only where it is impossible to do so will the court follow US law
How does the international court deal with general principles of law?
international court will find that it needs to resort to a legal precept found in national systems to fill a hole in an international case (if no treaty or custom)
➢ May be procedural or administrative areas of the law or notions of general legal liability
➢ Helpful because the international system doesn’t have a legislative body to it
Does the Int’l court use precedent?
international court does not necessarily apply precedent to all cases as a number of countries are civil law and common law cases
➢ But the court will cite to previous decisions when analyzing cases before it (just like the US court would)
What is one danger of using scholars’ work?
Int’l court uses sparingly, so it doesn’t appear court relies only on material from one country
➢ National court may rely on int’l scholars to support their interpretation of int’l law
How does equity work in international decisions?
sometimes an international court will refer to equity or fairness as guiding its decision to either find an international obligation or to refuse to do so
➢ May not be an actual source of law, but rather a way to influence the way the court applies the law
What are jus cogens? Give some examples
➢ A preemptory norm is a norm accepted and recognized by the international community of States as a whole as a norm from which there is no derogation
Examples include piracy, slavery, genocide, crimes against humanity
• Every state is entitled to investigate, prosecute, and punish or extradite individuals accused of jus cogens violations who are present in a territory under its jurisdiction
What are obligations erga omnes?
certain activities have been considered so reprehensible by the international community that the usual rules of jurisdiction are waived (rights of the child)
• These are obligations with a correlative right in each state→a violation gives rise to claim for compliance by all other nations
How are jus cogens and ergs omnes related?
➢ All jus cogens are erga omnes but not all erga omnes are jus cogens
Who can sanction for violations of international law?
➢ Individual countries and the United Nations
Who votes on who can sanction?
Who sanctions is voted on by the security counsel→constantly in session with a rotating president, 5 permanent countries (US, France, GB, Russia, China) with veto power and then 10 countries that rotate
