Sources Of International Law Flashcards
Why is PIL different for sources?
Because it has no single legislating body
Where do you find sources of PIL listed?
Art. 38(1) of the ICJ
What’s in Art. 38(1)
International conventionsInternational customThe general principles of law recognised by civilised nationsSubject to art 59 judicial decisions and the teachings of the highly qualified publicists
What is an international convention?
A contract, an agreement, normally in writing, between two or more states
Types of international convention
Bilateral/ multilateralRegional/ globalContractual/ law making
Where is the definition of a treaty?
Art.2 of the convention
Vienna convention on the law of treaties 1969
Codifies customary rules and thus most of its provisions bind all states, whether they are party to convention or not
The treaty making process
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
Who do treaties bind (articles)
Art. 34 - 36, only those states that are party to them
How long are states bound to treaties
Can be limited Usually unlimited
An example of a limited time frame treaty
European coal and steal community treaty 1951- expired after 50 years
What is a reservation?
A unilateral statement by a state seeking to modify the effect of certain provisions as far as that state is concerned
Reservations case
Reflected in art. 19-21 VCTL
Treaties can prohibit reservations
Art 19 Ottawa convention
Treaties may only permit some forms of reservation
Art 2
The reservation may be incompatible with the … Of the treaty
Object
Legal consequences of a reservation
Art21 All parties must accept the reservation
When can reservations be made?
In signature not ratification
What is customary law?
How states behave because of their legal obligations, what they think they are obliged to do
What are the two elements to customary law?
Practice- the actus reus The opinio juris- the mens rea
What do you have to look at for practice
DurationConsistencyRepetitionGenerality
Acts that constitute practice
Public statements , national lawConduct and reaction of statesAdaptation of treaties
What laid out the need for uniformity in state practice?
Anglo- Norwegian fisheries case
What held that practice had to be completely uniform?
Nicaragua caseInconsistent behaviour is seen as a breach, not an indication of a new rule
The practice of some states is more important than others
North Sea continental shelf- states that had sea were obvs more important
Does practice have to be over a long period of time?
No
Judge tenaka on custom
Custom is relative to the occasion and circumstance
The persistent objector rule
Asylum case
Erga omnes
Binding on everyone
Jus cogens
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.
Some problems with customary rules
Lack of certaintyGreater problems of accountability Unsuitable for complex rulesProblems for change
What is the other name for general principles recognised by civilised nations?
Non- liquet
Where can you find the definition of general principles recognised by civilised nations?
North Sea and continental shelf case
What is the highest decision making power in judicial decisions
The ICJ
An example of an international case made by the UKHL
Arrest warrant case
Where is equity referred to as another source of international law
Barcelona traction case
Unilateral statements as other sources of international law
Nuclear tests case
General assembly resolutions other sources of international law
May be evidence of custom- genocide resolutionMay be examples of state practice helping to give rise to custom - Nicaragua case
Examples of soft law
Rio declaration
What happens when there are two treaties?
Later treaties over earlierSpecialised over general
The UN and Iran
The nuclear non- proliferation treatyOnly 5 states can have nuclear weaponsMethods of enforcement- reports and visits, collective action through the UN
Where can we see examples of smart sanctions?
Unilateral action against Iran
Vissicher’s analogy of customary law
“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”
What about a failure to act as a determination of custom?
Shows just as much about custom as a positive act
What shows an example of a failure to act leading to customary law
Lotus case- abstention can lead to customary rules is it is meant in that way
Where can we see examples of what states actually do to prove custom?
Administrative actsLegislationCourt decisionsTreatiesDecisions of national courts
Where can we see an example of opinio juris?
The lotus case
Could the silence of a state be regarded as opinio juris?
Yes (aquistance)
What does the Anglo fisheries case say about customary law?
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
What happens if a state opposes the existence of custom from its inception
Would not be bound
Why do states fail to protest?
May not wish to give offenceMay want to reinforce political tiesOther reasons
Who do customary rules bind?
Everyone who didn’t dissent from the start
Is it possible for rules to develop which will bind only a set of states- or even two states
Asylum case
Can a treaty bind third parties?
NoBut there is a major exception when the treaty has entered into customary law The Hague conventions art 2
Multilateral treaty advantages
Binds a lot of states
Disadvantages of multilateral treaties
Can be changed regularlyPotentially many reservations
Reservation advantages
More states agree to ratify Don’t object in 12 months it is acceptedCan be withdrawn
Reservation disadvantages
Possible disputesNeed acceptance by all partiesComplex
