SOURCES OF INTERNATIONAL LAW: Flashcards
what is a treaty?
A treaty is a written agreement made between two or more states that is governed by international law
what are the sources of law?
1:
international conventions: written agreements between countries.
2: international customs practices countries follow out of tradition or necessity.
3: Court decisions
4: expert/ judicial opinions:legal scholars’ writings help interpret and explain the law.
THE CRITISICM OF ARTICLE 38:
1: does not explain what to do if different laws ( treaties and customs) conflict.
2: calls certain states “ civilised Nations. this term is outdated and is not fair for the others as it suggests that other countries better.
3: soft laws are ignored. non binding rules are not included, but they play a big role/ shape in todays international laws.
4; important rules ( like banning tortung, genocide) are not mentioned, even though they are considered higher than regular laws.
WHAT IS THE VIENNA CONVENTION ON THE LAW OF TREATIES 1969?
sets out rules for how treaties are made, followed, and how it is interpreted between countries.
1:it codifies ( writes down) the rules that show how treaties should be understood and applied.
2: it says that treaties are a part of the international relations.
3: countries that have not signed the convention ( are not parties) still need to follow these rules as they are a part of the customary international law.
WHAT ARE THE GENERAL PRINCIPLE OF INTERNATIONAL LAW?
1: PACTA SUN SERVANDA/ GOD FAITH: all agreements must be kept, and countries must act honestly and fairly when dealing with each other.
2: RES JUDICATA: once the court has made a final decision on a case, it cannot be changed. the matter is settled.
3: judicial impartiality:
judge must be neutral and must not favour the other side over another when making a decision.
4: LACHES: if someone waits too long to enforce a right or claim, they will lose the ability to do so because it is unfair to delay actin for to long.
WHAT IS INTERNATIONAL CUSTOM?
refers to the rules that come from a consistent action of countries, even if they’re not written down in treaties. these rules are considered law because countries accept and follow them.
what are the two key elements to determine if something is a customary law:
State Practice: This is when lots of countries do the same thing regularly. Examples include:
o Non-intervention: Countries don’t get involved in each other’s internal problems.
o Immunity for heads of state: Leaders of other countries can’t be arrested when visiting other countries.
o Non-refoulement: Countries don’t send refugees back to places where they might be in danger.
- Opinio Juris: Countries must believe that these actions are not just something they do, but something they must do because it’s the law. In other words, they follow these practices because they think they are legally required to.
Two key elements make up international custom:
- Material element (State practice): This is when a country repeatedly does the same thing in a certain way, even if not all countries follow it. The practice doesn’t need to be universal, but it should be consistent.
- Psychological element (Opinio Juris): This is the belief of a country that it is legally required to follow that practice. If a country doesn’t object to a practice, it is seen as accepting it.
To figure out if something is an international custom, what do you need to look at?
- What countries actually do (their actions).
- Whether they believe they are legally bound to act that way.
This way, both what states do and why they do it (because they believe it’s the law) are important.
what is the ss lotus 1927 case?
ISSUE:
whether turkey had the right to prosecute a French soldier for an ship incident that caused Turkish soldier to die.
turkey argued that they can sue as there was no rulr that stops them, and they had the right.
France argued there was a customary rule that only the country whose flag the ship flew (in this case, France) should have jurisdiction over the officer.
RULLING:The Court disagreed with France, saying there was no such customary rule preventing Turkey from trying the officer.
COSTUMARY INTERNATIONAL LAW TODAY:
Customary International Law is largely unwritten law that comes from practices accepted by countries as law.
important but hard to define what exactly customary law is.
The International Law Commission (ILC) was established in 1947 to help clarify and record international law (such as the Draft Principles on Environmental Protection in 2022). While codifying law is supported to reduce confusion, much of customary law remains unwritten.
what is human Intervention.
Humanitarian intervention refers to the use of force by one or more countries to stop or prevent widespread human rights abuses or atrocities in another country, like genocide, war crimes, or ethnic cleansing. This intervention is typically done without the approval of the country in question or the United Nations, although some argue it should be authorized by the UN.
human intervention.
- has been debated in international law since Grotius.
- Traditionally, it’s been rejected, ( Nicaragua) unless authorized by the UN.
- un 1990 NATO and the UK argued it should be allowed even without the authorisation of the UN approval .
