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Public International Law > T2 Sources of Law > Flashcards

T2 Sources of Law Flashcards

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1
Q

Which provision provides for 3 sources of IL?

A

Article 38(1) of ICJ Statute.

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2
Q

What are the 3 sources of IL in terms of Article 38(1) of ICJ Statute?

A
  1. Treaties
  2. Customs
  3. General principles
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3
Q

What is a treaty?

A

A treaty is a formal, legally binding agreement between two or more states or international organizations, governed by international law.

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4
Q

What are the characteristics of a treaty?

A
  1. Pacta sunt servanda (Article 26 VCLT)
  2. No prescribed form or procedure
  3. Voluntary consent
  4. Specificity
  5. Multilateral/Bilateral
  6. International legal personality
  7. Registration and Publication ito Article 102 of UN Charter
  8. Reservations
  9. International legal effects
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5
Q

How should a treaty be interpreted?

A

The primary method for interpreting a treaty is to look at the ordinary meaning of the text, in context, and in light of the treaty’s object and purpose (Article 31 of VCLT).

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6
Q

What are the Travaux Preparatoires?

A

Term refers to the official records of the negotiations, drafting, and discussions that take place during the creation of a treaty or other international agreements. The phrase is French for “preparatory works” and is used to describe the background materials that document the intent of the treaty’s drafters.

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7
Q

Which provision of the VCLT states that the travaux preparatoires can be used as a supplementary means of interpretation?

A

Article 32

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8
Q

How is a treaty terminated?

A

By provision or consent

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9
Q

What is custom?

A

A source of law that emerges from the consistent and general practice of states, accompanied by a sense of legal obligation and acceptance as legally binding by the international community

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10
Q

What are the two elements of custom?

A
  1. Actual practice
  2. Acceptance as practice as law
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11
Q

When is a practice considered customary international law?

A
  1. It must be consistent and uniform across a significant number of states.
  2. It occurs in such a way as to show a general recognition that a rule of law or legal obligation is involved (North Sea Continental Shelf)
  3. The practice should be widespread and representative
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12
Q

What is Opinio Juris (Sense of Legal Obligation)?

A

Opinio juris refers to the belief among states that a particular practice is carried out not merely as a matter of habit or convenience, but because they consider it to be legally obligatory.

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13
Q

What does Opinio Juris do?

A

It distinguishes customary law from mere international comity or usage.

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14
Q

What are the general principles of law as a source of law?

A

General principles of law are a source of public international law that refers to fundamental legal principles that are recognized and accepted by a majority of legal systems around the world.

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15
Q

What are examples of general principles of law?

A
  1. Good faith
  2. Justice
  3. Equity
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16
Q

What is the doctrine of rebus sic stantibus?

A

Principle that allows for the termination/modification of treaties/contracts if there has been a fundamental change in circumstances

17
Q

What principles govern conflict resolution?

A
  1. Lex specialis
  2. Lex posterior
18
Q

What is the doctrine of lex specialis?

A

If two laws govern the same factual situation, a law governing a specific subject matter overrides a law governing only general matters.

19
Q

What is the doctrine of lex posterior?

A

In the event that there are inconsistencies between domestic statutes, treaties or customary international law, the most recently enacted will govern.

20
Q

What are jus cogens?

A

Fundamental principles of international law that are universally recognized as non-derogable and binding on all states, regardless of their consent.

21
Q

What are erga omnes?

A

Obligations which a state owes to the international community.

22
Q

What is the difference between customary international law and jus cogens?

A

Level of obligation, While customary international law is binding on all states, there is a possibility for states to be exempt from specific customary rules if they have consistently and clearly objected to them during their formation (the “persistent objector” doctrine). Customary law can also be modified by treaties or subsequent state practice.

23
Q

What is the persistent objector doctrine?

A

A state that consistently objects to a particular practice from the outset may not be bound by that custom, provided it has clearly expressed its objection during the practice’s formation, does not apply to jus cogens.

24
Q

What are the characteristics of jus cogens?

A
  1. Universal acceptance
  2. Non-derogability
  3. Supremacy
  4. Immutability
  5. Universal jurisdiction
25
Q

What does article 53 of the VCLT hold?

A

That a treaty is void if it conflicts with a peremptory norm of general international law.

26
Q

What are examples of customary international law?

A
  1. Diplomatic immunity
  2. The principle of non-intervention
  3. The right to self-determination
27
Q

What are examples of jus cogens?

A
  1. The prohibition of genocide
  2. The prohibition of slavery and the slave trade
  3. The prohibition of torture
  4. The prohibition of aggression
  5. The prohibition of crimes against humanity
28
Q

Which case elaborated on the concept of erga omnes?

A

Barcelona Traction.

29
Q

What are characteristics of erga omnes?

A
  1. Universal concern
  2. Standing
30
Q

What are examples of erga omnes?

A
  1. Prohibition of genocide
  2. Prohibition of slavery
  3. Prohibition of torture
  4. Protection of fundamental human rights
31
Q

What is the relationship between jus cogens and erga omnes?

A

Many erga omnes obligations are also jus cogens norms because they protect core values that are universally recognized as non-derogable. However, not all erga omnes obligations are necessarily jus cogens. While jus cogens norms cannot be overridden by any state, erga omnes obligations specifically relate to the enforcement by the international community.

32
Q

What are the challenges facing jus cogens and erga omnes?

A
  1. Identification and agreement
  2. Enforcement

Public International Law (8 decks)

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