Sources Of International Law

Question 1

Why is PIL different for sources?

Answer 1

Because it has no single legislating body

Question 2

Where do you find sources of PIL listed?

Answer 2

Art. 38(1) of the ICJ

Question 3

What’s in Art. 38(1)

Answer 3

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

Question 4

What is an international convention?

Answer 4

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

Question 5

Types of international convention

Answer 5

Bilateral/ multilateralRegional/ globalContractual/ law making

Question 6

Where is the definition of a treaty?

Answer 6

Art.2 of the convention

Question 7

Vienna convention on the law of treaties 1969

Answer 7

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

Question 8

The treaty making process

Answer 8

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

Question 9

Who do treaties bind (articles)

Answer 9

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

Question 10

How long are states bound to treaties

Answer 10

Can be limited Usually unlimited

Question 11

An example of a limited time frame treaty

Answer 11

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

Question 12

What is a reservation?

Answer 12

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

Question 13

Reservations case

Answer 13

Reflected in art. 19-21 VCTL

Question 14

Treaties can prohibit reservations

Answer 14

Art 19 Ottawa convention

Question 15

Treaties may only permit some forms of reservation

Answer 15

Art 2

Question 16

The reservation may be incompatible with the … Of the treaty

Answer 16

Object

Question 17

Legal consequences of a reservation

Answer 17

Art21 All parties must accept the reservation

Question 18

When can reservations be made?

Answer 18

In signature not ratification

Question 19

What is customary law?

Answer 19

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

Question 20

What are the two elements to customary law?

Answer 20

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

Question 21

What do you have to look at for practice

Answer 21

DurationConsistencyRepetitionGenerality

Question 22

Acts that constitute practice

Answer 22

Public statements , national lawConduct and reaction of statesAdaptation of treaties

Question 23

What laid out the need for uniformity in state practice?

Answer 23

Anglo- Norwegian fisheries case

Question 24

What held that practice had to be completely uniform?

Answer 24

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

Question 25

The practice of some states is more important than others

Answer 25

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

Question 26

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

Answer 26

No

Question 27

Judge tenaka on custom

Answer 27

Custom is relative to the occasion and circumstance

Question 28

The persistent objector rule

Answer 28

Asylum case

Question 29

Erga omnes

Answer 29

Binding on everyone

Question 30

Jus cogens

Answer 30

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.

Question 31

Some problems with customary rules

Answer 31

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

Question 32

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

Answer 32

Non- liquet

Question 33

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

Answer 33

North Sea and continental shelf case

Question 34

What is the highest decision making power in judicial decisions

Answer 34

The ICJ

Question 35

An example of an international case made by the UKHL

Answer 35

Arrest warrant case

Question 36

Where is equity referred to as another source of international law

Answer 36

Barcelona traction case

Question 37

Unilateral statements as other sources of international law

Answer 37

Nuclear tests case

Question 38

General assembly resolutions other sources of international law

Answer 38

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

Question 39

Examples of soft law

Answer 39

Rio declaration

Question 40

What happens when there are two treaties?

Answer 40

Later treaties over earlierSpecialised over general

Question 41

The UN and Iran

Answer 41

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

Question 42

Where can we see examples of smart sanctions?

Answer 42

Unilateral action against Iran

Question 43

Vissicher's analogy of customary law

Answer 43

"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"

Question 44

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

Answer 44

Shows just as much about custom as a positive act

Question 45

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

Answer 45

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

Question 46

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

Answer 46

Administrative actsLegislationCourt decisionsTreatiesDecisions of national courts

Question 47

Where can we see an example of opinio juris?

Answer 47

The lotus case

Question 48

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

Answer 48

Yes (aquistance)

Question 49

What does the Anglo fisheries case say about customary law?

Answer 49

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

Question 50

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

Answer 50

Would not be bound

Question 51

Why do states fail to protest?

Answer 51

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

Question 52

Who do customary rules bind?

Answer 52

Everyone who didn't dissent from the start

Question 53

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

Answer 53

Asylum case

Question 54

Can a treaty bind third parties?

Answer 54

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

Question 55

Multilateral treaty advantages

Answer 55

Binds a lot of states

Question 56

Disadvantages of multilateral treaties

Answer 56

Can be changed regularlyPotentially many reservations

Question 57

Reservation advantages

Answer 57

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

Question 58

Reservation disadvantages

Answer 58

Possible disputesNeed acceptance by all partiesComplex