Sources of International Law - Textbook and Lecture Notes Flashcards
What is the ICJ?
The International Court of Justice.
Where does the validity of International Law as a system stem from?
Nineteenth century writers argued that the validity of the system was to be found in a species of social contract, whereby the consent of states gave the stamp of legitimacy to the rules.
Where are the three main sources of international legal rules listed?
In Article 38(1) of the Statute of the International Court of Justice (ICJ).
What are these main sources of International Law in terms of Article 38(1)?
(a) International conventions - treaties
(b) International Custom - Customary International Law (state practice)
(c) General law principles recognised by civilised nations.
Does the ICJ have the jurisdiction to decide cases in terms of what is fair and just or according to what equity and good conscience?
Yes. Article 38(2) of the Statute of the International Court of Justice ordains power on the Court to decide cases ex aequo et bono if the parties agree to it. Meaning the sources listed in subsection (1) should not prejudice the power of the Court to decide matters in terms of the the principle of what is fair and just.
What are the subsidiary sources of international law and where are they listed?
The subsidiary sources of international law are found in Article 38(1)(d) and are the Judicial decisions and teachings of the most highly qualified publicists.
What is the purpose of the subsidiary sources of IL in subsection (d) of Article 38(1)?
The subsidiary sources of IL assist in determining and interpreting the rules in the main sources.
What are the ways that International Law can be enforced when there has been a breach?
1) State Responsibility - the wronged state can pursue a claim in civil law proceedings against the wrongdoing state.
2) Courts - The involved states can all grant consent to an international court such as the International Court of Justice or any relevant international court to have jurisdiction over the states in hearing and resolving the matter. An international court only has the jurisdiction to adjudicate over a matter if the involved states both consent to be bound by that court’s adjudication.
What disadvantage arises due to the needed consent from states in order for international courts to gain jurisdiction over a matter?
The Doctrine of Precedent in International Law is affected by this as every decision of the international court only binds the states who are parties in the matter. Thus there is no formal system of precedent in international courts and tribunals.
However, in as much as judgments are not binding on future matters, they serve as part of the subsidiary sources (Article 38(1)(d) that assist in determining what the primary sources of International law mean/are.
What Remedies are available for breaches?
- Civil law remedies: compensation, restitution, apologies.
- Non-forcible countermeasures such as trade embargos against the state in breach.
- United Nations Security Council Sanctions.
- Use of force (authorised by the United Nations Security Council).
What are some international organisations involved in International Law and relations?
- International Organisations
The United Nations (UN) and its specialised organisations: Security Council, General Assembly, International Court of Justice (ICJ), Secretariat, Committees. - Regional Organisations
The Southern African Development Community, African Union, European Union.
Judicial Organisations
The International Court of Justice, the International Criminal Court, the African Court of Justice, the European Court of Justice.
Expert bodies: Treaty bodies such as the United Nations Human Rights Committee, the International Law Commission (ILC).
What is International Law?
International Law is a set of rules and principles that primarily bind states in their relations with one another. However, there are some rules of International Law that apply directly to individuals, but generally International Law is concerned with rules that bind states in their relations with one another.
What are the three ways that International Law can apply?
1) General application: it applies to all 193 (one hundred and ninety three) world states.
2) Regional: it applies to a certain region of the world states (such as SADC regulations are only applicable and binding to Southern African countries that are member states of SADC).
3) Bilateral: it applies between two individual states only.
What is the difference between domestic law systems and the International Law system?
Domestic Law Systems are vertical and centralised in nature meaning that the central state authority is responsible for making and enforcing rules in governing citizens who are subjects of the law. Whereas international law is horizontal and de-centralised authority meaning that the states consent to the creation and partake thereof in the making of these international rules and agreements.
The subjects of international law are also the creators and enforcers of it whereas the subjects (citizens/country residents) of domestic law are not the same authority as the enforcers (police and judiciary) and makers (legislature) of the law - there are separate entities.
