UNIT 4- The sources of PIL

Question 1

Jus cogens norms:

Answer 1

The jus cogens norms are exceptions to the international legal order as they are superior to regular norms (informal hierarchy).

Characteristics according to Article 53 of the Vienna Convention on Law of Treaties (1969):

• binding and compulsory norms created and accepted by the international community through consensus.
• no derogation is allowed, even by consensus, and modifications can only occur through a subsequent norm with the same character.
• able to invalidate other rules or treaties, internal and external, that go against it (example: Aloeboetoe Case in the IACHR).
• new states must accept the norms
• International crimes are considered when states do not comply with the norms and cases can be brought to the ICJ or the competent international legal institutions.

Question 2

Examples of jus cogens norms

Answer 2

• prohibition of genocide
• prohibition of slavery and slave trade
• prohibition of torture
• prohibition of racial discrimination
• prohibition on the use of force
• right of self-determination
• prohibition of aggression
• international humanitarian law
• jurisprudence of international and national courts

Question 3

Customary International Law

Answer 3

Definition: Customary international law is formed by the general and consistent practice of states, accompanied by a belief that such practice is legally required (opinio juris).

Main elements:
1) Objective: states’ persistent actions (or lack of) in the international community.
- consistent and uniform: states must keep the same behavior in similar events as they become new international customs.

2) Subjective (opinion juris): interpretation and motivation of the states practice

State Practice: States engage in certain behavior not out of legal obligation but because they believe it to be required by law.

Opinio Juris: The belief that the practice is legally required is crucial for the formation of customary law.

Example: The prohibition of the use of force, as reflected in state practice and opinio juris, has become a customary norm.

Question 4

Unilateral legal act:

Answer 4

Autonomous unilateral declarations are public manifestations (verbal or written) made by a single state that have a binding effect on the rights and obligations of that state. States cannot make unilateral acts that have consequences on other states because it violates the principle of non-intervention and acting on good faith.

Question 5

Sources of publications (unilateral legal act):

Answer 5

• declaration before the UNGA
• press conferences
• diplomatic notes
• interviews
• international organizations

Question 6

Authors of unilateral acts (representation of state subjects) (unilateral legal act):

Answer 6

• head of state or government
• ministry of foreign affairs
• ministry of defense

Question 7

Pacta sunt servanda (unilateral legal act):

Answer 7

Binding unilateral declaration for the state that realized the act.
–> linked with the principle of good faith