Sources of International Law

Question 1

What does Art. 38 of the ICJ statute in particular enshrine?

Answer 1

• the rules which the court will abide to and use as law

Question 2

What are the two categories of norms of International Law

Answer 2

1. Traditional norms of International law
   2.Secondary Sources of International law

Question 3

TRUE or FALSE: there is no hierarchy between sources of International Law

Answer 3

-TRUE

Question 4

What does ex aequo et bono mean?

Answer 4

-decision not STRICTLY according to law
-but taking in2 consid. justice + equaity

Question 5

Has a decision ex aequo et bono ever happened (not important)?

Answer 5

-NO

Question 6

List the primary sources of International Law

Answer 6

-Treaties
-CIL
-General Principles of Law

Question 7

Where is the distinction between primary and secondary sources of law established?

Answer 7

-Art. 38(1)

Question 8

What are the subsidiary decisions of law

Answer 8

-Judicial Decisions
-Teach. of most highly qualified publiciests

Question 9

TRUE OR FALSE: Art. 38 ICJ Statute contains an exhaustive list of sources of international law

Answer 9

-FALSE

Question 10

What are examples of sources of International Law outside of those outline in the ICJ Statute?

Answer 10

• Unilateral declarations

Question 11

When does a treaty enter into force?

Answer 11

• when enough parties ratify it

Question 12

What does Bin Cheng believe about opinio iuris?

Answer 12

-One Opinio Iuris not enough:
-there are 5 different types of opinio iuris whih need to be acheived

Question 13

What are the requirements of state practice?

Answer 13

1. Widespread
2. Representative
3. Constant/consistent
4. (Virtually) uniform

Question 14

How does the idea of Specially affected States come into play in Customary International Law?

Answer 14

-some states more affected than others
-have to take in their perspective more than others in CIL

Question 15

Summarise what Draft Conclusion 3 explains

Answer 15

• General principles of law=
  -from national legal systems
  -transposed–> IL

Question 16

Summarise what Draft Conclusion 4 ILC believes

Answer 16

-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.

Question 17

Explain the Persistent Objector Law

Answer 17

-CONS. objection
-while EMERGING
-before it has become CIL

Question 18

What are the important cases for this week

Answer 18

-Anglo Norwegian Fisheries case
-North Sea Continental Shelf
-Nuclear test case
-Nicaragua case

Question 19

Explain Draft Conclusion 5

Answer 19

-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.

Question 20

Explain Draft Conclusion 6

Answer 20

–> transpos. of ILS as long as
- comp. w/ fund.princ. o. law
–> comp. with iLs + conditions exist for its adeq. app. in ILS

Question 21

Explain Draft Conclusion 7

Answer 21

-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

Question 22

Can VCLT be applied retroactively?

Answer 22

-Yes, but only because it’s CIL

Question 23

Does the persistent objector rule applies to ius cogens?

Answer 23

-NO

Question 24

Do Judicial Decisions create law?

Answer 24

-NO

Question 25

What is the relevence of the Ango Norwegian Fisheries Case to the evaluation of sources of Law in PIL?

Answer 25

-refers to possibilit of persistent objector rule
-doe not apply it itself

Question 26

What was the key conclusion of the Nuclear Test Case in relation to sources of PIL

Answer 26

-Unilateral statement= binding
if:
1. Intent
2. Clear expression of intention
-Court does not create law–> clarifies

Question 27

What is the conclusion of the Nicaragua case in regards to Sources of Customary International Law

Answer 27

-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
-If other states don’t condemn violation, could be new rule

Question 28

What does the North Sea Continental Shelf case confirm in terms of CIL?

Answer 28

-State Practice= EXTENSIVE and VIRTUALLY UNIFORM (C. 74)
-Time element= doesn’t have to have been established 4 long time (C.73)

Question 29

Does the decision of the ICJ have binding force to countries outside the parties?

Answer 29

-NO

Question 30

Explain how Omissions of States can affect CIL

Answer 30

-Abstentions from actions may or may not indicate the existence of practice

Question 31

Which cases outline the requirements of customary international law (opinio iuris and state practice)

Answer 31

-Nicaragua case
-North Sea Continental case

Question 32

Which cases used UNGA resolutions as evidence of international law?

Answer 32

-Nicragua case

Question 33

What type of law may General Assembly fall under

Answer 33

-Soft law

Question 34

TRUE or FALSE: Treaties are only binding on the party states

Answer 34

-TRUE

Question 35

Which case onlines the scope of treaties(who it is binding on)?

Answer 35

-Nicaragua