Sources of International Law

Question 1

International Customary Law

Answer 1

A long established tradition or usage that becomes customary if:

1. It is consistent and regularly observed (physical) AND
2. Opinio Juris (mental)

Question 2

Travaux preparatoires

Answer 2

Preparatory works (used to interpret a treaty)

Question 3

Pacta Sunt Servanda

Answer 3

Treaties are binding on parties and must be carried out in good faith

Overrides rebus sic stantibus (fundamental change in circumstances)

Question 4

Peace of Westphalia

Answer 4

1648

Viewed as beginning of modern international law/relations

Start of state sovereignty/national state system

Question 5

Statute of the ICJ Article 38

Answer 5

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
   a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
   b. international custom, as evidence of a general practice accepted as law;
   c. the general principles of law recognized by civilized nations;
   d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Question 6

Monism

Answer 6

International law and domestic law are part of one unified system

Question 7

Dualism

Answer 7

1. International law and domestic law are distinct forms of law and
2. International law can only operate nationally if it has been specifically incorporated into national law

Question 8

What State Department publication lists all the treaties to which the US is a party?

Answer 8

Treaties in Force

Question 9

Types of Jurisdiction for a State to Prosecute Individual

Answer 9

1. Territoriality (universally accepted): if even occurred in state’s own territory
2. Nationality (almost universally accepted): state can assert jurisdiction if there is some genuine link to the person or thing
3. Passive Personality (not well accepted): state can assert jurisdiction on the basis of the nationality or residence of the victim
4. Effects Doctrine/Objective Territoriality: is there a substantial effect on the state?
5. National Security: state may extend jurisdiction on the implication of a possible threat to national security

Question 10

Lex Ferenda

Answer 10

Law in the process of being made

Question 11

Lex Lata

Answer 11

Hard Law

Question 12

Most Important Source of Customary Law

Answer 12

Jus Cogens