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Public International Law > Sources Of International Law > Flashcards

Sources Of International Law Flashcards

1
Q

Why is PIL different for sources?

A

Because it has no single legislating body

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2
Q

Where do you find sources of PIL listed?

A

Art. 38(1) of the ICJ

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3
Q

What’s in Art. 38(1)

A

International conventionsInternational customThe general principles of law recognised by civilised nationsSubject to art 59 judicial decisions and the teachings of the highly qualified publicists

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4
Q

What is an international convention?

A

A contract, an agreement, normally in writing, between two or more states

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5
Q

Types of international convention

A

Bilateral/ multilateralRegional/ globalContractual/ law making

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6
Q

Where is the definition of a treaty?

A

Art.2 of the convention

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7
Q

Vienna convention on the law of treaties 1969

A

Codifies customary rules and thus most of its provisions bind all states, whether they are party to convention or not

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8
Q

The treaty making process

A

Can happen anywhere- signature, not binding but then can’t undermine the treaty (US on Rome)- ratification - then equally bound, a certain number of state need to ratify

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9
Q

Who do treaties bind (articles)

A

Art. 34 - 36, only those states that are party to them

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10
Q

How long are states bound to treaties

A

Can be limited Usually unlimited

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11
Q

An example of a limited time frame treaty

A

European coal and steal community treaty 1951- expired after 50 years

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12
Q

What is a reservation?

A

A unilateral statement by a state seeking to modify the effect of certain provisions as far as that state is concerned

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13
Q

Reservations case

A

Reflected in art. 19-21 VCTL

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14
Q

Treaties can prohibit reservations

A

Art 19 Ottawa convention

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15
Q

Treaties may only permit some forms of reservation

A

Art 2

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16
Q

The reservation may be incompatible with the … Of the treaty

A

Object

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17
Q

Legal consequences of a reservation

A

Art21 All parties must accept the reservation

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18
Q

When can reservations be made?

A

In signature not ratification

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19
Q

What is customary law?

A

How states behave because of their legal obligations, what they think they are obliged to do

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20
Q

What are the two elements to customary law?

A

Practice- the actus reus The opinio juris- the mens rea

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21
Q

What do you have to look at for practice

A

DurationConsistencyRepetitionGenerality

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22
Q

Acts that constitute practice

A

Public statements , national lawConduct and reaction of statesAdaptation of treaties

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23
Q

What laid out the need for uniformity in state practice?

A

Anglo- Norwegian fisheries case

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24
Q

What held that practice had to be completely uniform?

A

Nicaragua caseInconsistent behaviour is seen as a breach, not an indication of a new rule

25
Q

The practice of some states is more important than others

A

North Sea continental shelf- states that had sea were obvs more important

26
Q

Does practice have to be over a long period of time?

A

No

27
Q

Judge tenaka on custom

A

Custom is relative to the occasion and circumstance

28
Q

The persistent objector rule

A

Asylum case

29
Q

Erga omnes

A

Binding on everyone

30
Q

Jus cogens

A

Certain overriding fundamental principles which you cannot ever go against. There is contention over what is actually in this category but it includes things like the prohibition of the use of force and genocide.

31
Q

Some problems with customary rules

A

Lack of certaintyGreater problems of accountability Unsuitable for complex rulesProblems for change

32
Q

What is the other name for general principles recognised by civilised nations?

A

Non- liquet

33
Q

Where can you find the definition of general principles recognised by civilised nations?

A

North Sea and continental shelf case

34
Q

What is the highest decision making power in judicial decisions

A

The ICJ

35
Q

An example of an international case made by the UKHL

A

Arrest warrant case

36
Q

Where is equity referred to as another source of international law

A

Barcelona traction case

37
Q

Unilateral statements as other sources of international law

A

Nuclear tests case

38
Q

General assembly resolutions other sources of international law

A

May be evidence of custom- genocide resolutionMay be examples of state practice helping to give rise to custom - Nicaragua case

39
Q

Examples of soft law

A

Rio declaration

40
Q

What happens when there are two treaties?

A

Later treaties over earlierSpecialised over general

41
Q

The UN and Iran

A

The nuclear non- proliferation treatyOnly 5 states can have nuclear weaponsMethods of enforcement- reports and visits, collective action through the UN

42
Q

Where can we see examples of smart sanctions?

A

Unilateral action against Iran

43
Q

Vissicher’s analogy of customary law

A

“The growth of custom was akin to the formation of a road across a vacant land- after a while everyone begins to use it and it becomes the only path”

44
Q

What about a failure to act as a determination of custom?

A

Shows just as much about custom as a positive act

45
Q

What shows an example of a failure to act leading to customary law

A

Lotus case- abstention can lead to customary rules is it is meant in that way

46
Q

Where can we see examples of what states actually do to prove custom?

A

Administrative actsLegislationCourt decisionsTreatiesDecisions of national courts

47
Q

Where can we see an example of opinio juris?

A

The lotus case

48
Q

Could the silence of a state be regarded as opinio juris?

A

Yes (aquistance)

49
Q

What does the Anglo fisheries case say about customary law?

A

Where a state acts contrary to an established customary rule, and other states aquise this, then that state is to be treated as not bound by the original rule

50
Q

What happens if a state opposes the existence of custom from its inception

A

Would not be bound

51
Q

Why do states fail to protest?

A

May not wish to give offenceMay want to reinforce political tiesOther reasons

52
Q

Who do customary rules bind?

A

Everyone who didn’t dissent from the start

53
Q

Is it possible for rules to develop which will bind only a set of states- or even two states

A

Asylum case

54
Q

Can a treaty bind third parties?

A

NoBut there is a major exception when the treaty has entered into customary law The Hague conventions art 2

55
Q

Multilateral treaty advantages

A

Binds a lot of states

56
Q

Disadvantages of multilateral treaties

A

Can be changed regularlyPotentially many reservations

57
Q

Reservation advantages

A

More states agree to ratify Don’t object in 12 months it is acceptedCan be withdrawn

58
Q

Reservation disadvantages

A

Possible disputesNeed acceptance by all partiesComplex

Public International Law (13 decks)

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