Sources of International Law Flashcards
What does Art. 38 of the ICJ statute in particular enshrine?
- the rules which the court will abide to and use as law
What are the two categories of norms of International Law
- Traditional norms of International law
2.Secondary Sources of International law
TRUE or FALSE: there is no hierarchy between sources of International Law
-TRUE and FALSE
-Art. 38 SICJ no hierarchy
-BUT UN Charter has primacy over
-any other intl agree. (Art. 103 UNC)
What does ex aequo et bono mean?
-decision not STRICTLY according to law
-but taking in2 consid. justice + equaity
Has a decision ex aequo et bono ever happened (not important)?
-NO
List the primary sources of International Law
-Treaties
-CIL
-General Principles of Law
Where is the distinction between primary and secondary sources of law established?
-Art. 38(1)
What are the subsidiary decisions of law
-Judicial Decisions
-Teach. of most highly qualified publiciests
TRUE OR FALSE: Art. 38 ICJ Statute contains an exhaustive list of sources of international law
-FALSE
What are examples of sources of International Law outside of those outline in the ICJ Statute?
- Unilateral declarations
When does a treaty enter into force?
- when enough parties ratify it
What does Bin Cheng believe about opinio iuris?
-One Opinio Iuris not enough:
-there are 5 different types of opinio iuris whih need to be acheived
What are the requirements of state practice?
- Widespread
- Representative
- Constant/consistent
- (Virtually) uniform
How does the idea of Specially affected States come into play in Customary International Law?
-some states more affected than others
-have to take in their perspective more than others in CIL
Summarise what Draft Conclusion 3 explains
- General principles of law=
-from national legal systems
-transposed–> IL
Summarise what Draft Conclusion 4 ILC believes
-to determine whether smth is a gp +what content of it is:
1.COMMONALITY –> p is common to main legal systems of the world
2. TRANSPOSITION–>its traspos. in the international leg.Sys.
Explain the Persistent Objector Law
-CONS. objection
-while EMERGING
-before it has become CIL
-Anglo fisheries case
What are the important cases for this week
-Anglo Norwegian Fisheries case
-North Sea Continental Shelf
-Nuclear test case
-Nicaragua case
Explain Draft Conclusion 5
-1. Principle common to the various main leg.sys. in da world
–> 2.asses,.=representative + includes diff legal familites
3.asses. national legis. laws, dec. of nat. courts + other rel. mat.
Explain Draft Conclusion 6
–> transpos. of ILS as long as
- comp. w/ fund.princ. o. law
–> comp. with iLs + conditions exist for its adeq. app. in ILS
Explain Draft Conclusion 7
-To determine existence + content of a general principle
1. Widely recognised in treaties or other instru.
2. Customary law
3. Inherent in BASIC features and fund. req. o ILS
Can VCLT be applied retroactively?
-Yes, but only because it’s CIL
Does the persistent objector rule applies to ius cogens?
-NO
-Michael Domininguez case
Do Judicial Decisions create law?
-NO
-Nuclear Test (France v. Australia)
What is the relevence of the Ango Norwegian Fisheries Case to the evaluation of sources of Law in PIL?
-refers to possibilit of persistent objector rule
-doe not apply it itself
What was the key conclusion of the Nuclear Test Case in relation to sources of PIL
-Unilateral statement= binding
if:
1. Intent
2. Clear expression of intention
-Court does not create law–> clarifies
What is the conclusion of the Nicaragua case in regards to Sources of Customary International Law
-UNGA resolutions can show opinio iuris
-For new custom 2 be established–> settled practice + opinio iuris
-Just because state actions are inconsistent w/ CIL doesn’t mean CIL doesn’t exist(C.186)
-If other states don’t condemn violation, could be new rule
What does the North Sea Continental Shelf case confirm in terms of CIL?
-State Practice= EXTENSIVE and VIRTUALLY UNIFORM (C. 74)
-Time element= doesn’t have to have been established 4 long time (C.73)
Does the decision of the ICJ have binding force to countries outside the parties?
-NO
-Art. 59 SICJ
Explain how Omissions of States can affect CIL
-Abstentions from actions may or may not indicate the existence of practice
Which cases outline the requirements of customary international law (opinio iuris and state practice)
-Nicaragua case
-North Sea Continental case
Which cases used UNGA resolutions as evidence of international law?
-Nicragua case
What type of law may General Assembly resolutions fall under
-Soft law
TRUE or FALSE: Treaties are only binding on the party states
-TRUE
Which case onlines the scope of treaties(who it is binding on)?
-Nicaragua
