Sources of Law Flashcards
How IL operates within international relations, with particular emphasis on how states are legally defined and how they interact with one another. Includes the role of law, the development of international legal rules, the development of the international legal system by members of the international community. Understand where IL emanates from, what sources to look to for interpreting IL and how different states integrate IL.
Sources of IL
What is the primary source of international law as defined by Article 38(1) of the Statute of the ICJ?
International conventions, international custom, general principles of law, judicial decisions, and teachings of highly qualified publicists.
Manion, K. (2025 L2.1)
Given the source of IL is debated and broad, it has weak points, including enforcement.
Sources of IL
Define ‘International Conventions’ in the context of international law.
Legal agreements, bilateral treaties, or multilateral treaties, serving as the main instrument for settling international arrangements.
Manion, K. (2025 L2.1)
Sources of IL
What role do treaties play in international law?
They are the only source of codified law at the international level and contain elements of international customary law.
Manion, K. (2025 L2.1)
Sources of IL
What is the doctrine of ‘rebus sic stantibus’?
A general principle indicating that a treaty will continue as long as the conditions which led to its creation remain the same.
Manion, K. (2025 L2.1)
Sources of IL
What is a ‘reservation’ in the context of treaty ratification?
A formal statement by a State party to include reservation to specific articles in the treaty, to modify the legal circumstances created by the treaty.
Manion, K. (2025 L2.1)
Sources of IL
True or False: Customary international law is superior to rules created by treaty.
False. Both sources have equal weight in providing legal rules.
Manion, K. (2025 L2.1)
Sources of IL
What are the two elements that give validity to a rule of customary international law?
- Material or objective practice of States
- Psychological element ‘opinio juris’
Manion, K. (2025 L2.1)
Sources of IL
What is ‘opinio juris’?
The subjective conviction held by States that a practice is legally obligatory.
Manion, K. (2025 L2.1)
Sources of IL
What is the significance of the Montevideo Convention 1933 regarding statehood?
It provides that governments have the capacity to enter into international relations, including making treaties.
Manion, K. (2025 L2.1)
Sources of IL
Fill in the blank: The expression of will to be bound by a treaty is evidenced in the act of _______, signature, or ratification.
[accession]
Manion, K. (2025 L2.1)
Sources of IL
What is the purpose of incorporating general principles as a source of law in international law?
To safeguard against lacunae (based on lacuna) by expanding the sources of law and reflecting fundamental legal norms.
Manion, K. (2025 L2.1)
Sources of IL
Name an example of an international convention.
United Nations Convention on the Law of the Sea 1982.
Manion, K. (2025 L2.1)
Sources of IL
What is meant by ‘law-making treaties’?
Multilateral or multipartite treaties that create rules of conduct in international relations.
Manion, K. (2025 L2.1)
Sources of IL
What does Article 19 of the Vienna Convention on the Law of Treaties 1969 specify about reservations?
A State may formulate a reservation unless it is prohibited by the treaty or incompatible with the treaty’s object and purpose.
Manion, K. (2025 L2.1)
The signing of the treaty must be compatible with pacta sunt servanda (agreements must be kept). Therefore, a reservation automatically leads to a junction in the norm development. So may impede/obstruct complete ratification.
Sources of IL
What is the role of the International Court of Justice in relation to international law?
To decide disputes submitted to it in accordance with international law.
Manion, K. (2025 L2.1)
Sources of IL
True or False: Treaties enter into effect in municipal legal systems only after a State has ratified them.
True.
Manion, K. (2025 L2.1)
Sources of IL
What was the impact of the Truman Proclamation in 1945?
It initiated the concept of the Continental Shelf, leading to subsequent customary international law developments.
Manion, K. (2025 L2.1)
There was an unnecessary reservation by France to Article 6 of the 1958 Convention on the Continental Shelf.
Sources of IL
What is the significance of the Anglo-Norwegian Fisheries Case?
It marked a shift in customary international law regarding territorial sea limits.
Manion, K. (2025 L2.1)
Sources of IL
What does ‘pacta sunt servanda’ mean?
Agreements must be kept.
Manion, K. (2025 L2.1)
Sources of IL
What are the three formal sources of international law?
- Treaties
- International customary law
- General principles of law
Manion, K. (2025 L2.1)
Sources of IL
What is the concept of ‘instant custom’ in international law?
A rapid formation of customary law that contradicts traditional observances due to the speed of international relations.
Manion, K. (2025 L2.1)
Validity of a Treaty Reservation
During the domestic legislative process to ratify a treaty, validaty may be questioned. What does Article 19 of the VIenna Convention on the Law of Treaties 1969 specify?
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
- the reservation is prohibited by the treaty;
- the treaty provides that only specified reservations, which do not include
the reservation in question may be made; or - in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.
Manion, K. (2025 L2.1)
A State makes a reservation in a unilateral statement when signing, accepting, approving, or acceding to a treaty, in order to modify the legal effect of certain provisions of the treaty which will become a part of legal in that particular State.
ICJ 38.1 International Customary Law
What are example(s) of normative changes of customary IL?
- Truman Proclamation 1945, ‘instant custom’ to 1958 Geneva Convention on the Continental Shelf ratified by 40 SAs.
- Exclusive Economic Zone 3 nautical miles low water point Convention on the Territorial Sea and Contiguous Zone UN 1958>Anglo-Norwegian Fisheries Case ICL, 1951 4 miles from straight baselines >some SAs changed practice to 12 nautical miles, others to 200 nautical miles> 1982 United Nations Convention on the Law of the Sea all 200 nautical miles.
Manion, K. (2025 L2.1)
General Principles
What makes an IL rule legally binding?
Formal sources of law create and make a rule legally binding. A rule will be legally binding if:
* it is in a treaty; or
* it meets the requirements of custom; or
* it is a well-recognized general principle of national/domestic law.
Manion, K. (2025 L2.1)
The Court may apply any of the 3 sources in any order as the nature of each source differs greatly & rules may be found consecutively or simultaneously (PCIJ, 1920)
International Law & States
What is contemporary general international law?
The aggregate of norms created by agreement between states, regulating relations between States with a generally democratic character
Manion, K. (2025 L2.2)
This definition emphasizes peaceful coexistence, freedom, and independence of peoples, often secured through coercion by States.
International Law & States
What are the four components that constitute a State?
- Population
- Territory
- Governing body
- Recognition of statehood by other governments and international organizations
Manion, K. (2025 L2.2)
International Law & States
How does classic international law differ from contemporary international law?
Classic international law regulates the conduct of States, while contemporary international law governs relations involving all persons and populations
Manion, K. (2025 L2.2)
This reflects a broader application of international law beyond just state interactions.
International Law & States
Fill in the blank: International laws are regulations created by States to govern _______.
[themselves]
Manion, K. (2025 L2.2)
International Law & States
True or False: International law is exclusively a set of rules governing relations between States.
False
Manion, K. (2025 L2.2)
International Law & States
What do the rules of international law emanate from?
The free will of States as expressed in conventions or by customary usage
Manion, K. (2025 L2.2)
These principles are generally accepted as expressing laws to regulate relations between independent communities.
International Law & States
What is the normative definition of international law based on?
A behaviourally responsive perspective, applying to States and certain other entities
Manion, K. (2025 L2.2)
This includes rights, privileges, powers, immunities, obligations, and responsibilities.
International Law & States
What does international law include in terms of State responsibilities?
- Rights
- Privileges
- Powers
- Immunities
- Obligations
- Responsibilities
Manion, K. (2025 L2.2)
International Law & States
Fill in the blank: IL includes a form of duty, rights, liability, and _______.
imputability
Oxford University Press. (n.d.): The principle that internationally illegal acts or omissions contributing to the damage to foreign property, and caused in some way by organs of the state apparatus, are attributable to the state and therefore incur that state’s responsibility. Thus, there must have been state participation in the act before there can be state responsibility for it. International law treats as irrelevant the question whether, under municipal law, the officials of the state acted beyond their authority, provided they used state organs in performance of the act.
Manion, K. (2025 L2.2)
Hence, the state has been held liable for the acts of soldiers who joined rioters instead of suppressing them (Thomas H Youmans (US) v United Mexican States (1924) 4 RIAA 10).
International Legal Norms
What are the traditional formal sources of international law according to Friedmann?
International conventions, international customary law, and general principles.
Manion, K. (2025 L2.2)
Friedmann suggests that informal sources, such as those mentioned in 38(1) d of the Statute of ICJ, do not hold the same sway.
International Legal Norms
How do treaties differ from customary law in the context of binding obligations?
Treaties bind only contracting parties, while customary law creates norms binding on all members of the international community.
Manion, K. (2025 L2.2)
This distinction is highlighted in Friedmann’s work.
International Legal Norms
What is Kelsen’s view on the term ‘sources of law’?
It is a ‘figurative and highly ambiguous expression.’
Manion, K. (2025 L2.2)
Kelsen argues that the term is used to designate methods of creating law and to identify the reason for the validity of the law.
International Legal Norms
What does Kelsen suggest about legal norms?
A legal norm prescribes or permits certain human behaviour, and a set of norms forms a normative order.
Manion, K. (2025 L2.2)
Kelsen held that the law is a normative order, and legal norms provide sanctions.
International Legal Norms
According to Kelsen, how does each legal norm relate to the next?
Every legal norm is a source of the next norm, the creation of which it regulates.
Manion, K. (2025 L2.2)
This points to the self-directing nature of international law.
International Legal Norms
What constitutes the constitution of the international community according to Kelsen?
The United Nations Charter and the Statute of the International Court of Justice.
Manion, K. (2025 L2.2)
These documents contain norms that regulate the development of international law.
International Legal Norms
What are the principal methods of creating international law?
Customary international law and treaty (conventional international law).
Manion, K. (2025 L2.2)
Both methods are essential for the establishment of international law.
International Legal Norms
What is the significance of treaties in international law?
Treaties bind contracting parties to normative obligations and duties set forth in the treaty.
Manion, K. (2025 L2.2)
Kelsen notes a similarity between custom and treaty at this stage.
International Legal Norms
Who asserts that treaties are important elements in the evolution of international legal norms?
Friedmann.
Manion, K. (2025 L2.2)
He emphasizes the role of bilateral treaties and international economic agreements.
International Legal Norms
Fill in the blank: Custom as defined by international law is the practice that States ought to behave in a certain way accelerated by _______.
opinio juris.
Manion, K. (2025 L2.2)
International Legal Norms
What does ‘lex lata’ mean?
The law as it exists.
Manion, K. (2025 L2.2)
It refers to norms that have become firmly accepted and established.
