Week 2 - sources of international law

Question 1

Domestic legal sources v international legal sources

who makes the rules?

Answer 1

Domestic Legal Sources;
=> rules established by a special body

ex. parliament, government, courts

International Legal Sources:
=> states make the law themselves FOR themselves based on values + beliefs
- No unified judiciary, parliament, gov to create laws for states
- There are many dif legal procedures to do this

Question 2

Date of S.S. Lotus Case

+ why does the date matter?

Answer 2

1927

==> VCLT is not applicable bc it was established in 1969 + prohibits retroactive effect

Question 3

Case of S.S. Lotus (1927) - FACTS

Answer 3

1927 →
- French SS Lotus Ship collided with a Turkish ship on High seas of Turkish Coast
- 8 Turkish nationals died
- Turkey initiated an investigation (to find out who was to blame for the incident)
- France said Turkey did not have the jurisdiction to begin an investigation and thus violated international law
- Brought the claim against Turkey before the Permanent Court of International Justice (PCIJ)

Question 4

S.S. LOTUS (1927) - PCIJ DECISION

Answer 4

• States are independent political entities + relations between them are equal
• Law appears from their own free will,
• Thus, an obligation to act a certain way needs a justification

Therefore ⇒ there was no legal prohibition stating Turkey could not conduct an investigation, there were no grounds of the claims of France

Question 5

Lotus Principle:

Answer 5

1. States are free to act as they see fit, unless there is an explicit prohibition they accepted beforehand

=> aka State conduct is unrestricted, unless there is a restriction = presumed freedom

2. The will of states and their acceptance of rules is the foundation of sources of international law
   => aka for something to be a law, states must accept it as one

note:
International law is based on diapositive rules (jus Dispositivum) → this means one cannot presume the existence of an obligation

Question 6

what article outlines the sources of international law?

Answer 6

Art. 38(1) statute of International Court of Justice

Question 7

what is the Art. 38(1) ICJ statute?

what does it enumerate? LIST IT!

Answer 7

Art. 38 enumerates (lists) the sources of international law

1. International conventions / treaties
2. International customs - customary international law
3. General principles of law
4. Judicial decisions
5. Teachings of highly qualified publicists of various nations

Question 8

are resolutions of UN Assembly sources of international law?

Answer 8

NO

• Not listed in Art. 38 ICJ statute,
• UN resolutions can be legally binding if it is explicitely pronounced in the treaty → meaning it would be a source of law BUT it is NOT amongst the primary sources
• U cant say it is NEVER a source of law, but you can say it is not a source of law (esp in comparison to sources listed in Art. 38(1))

Question 9

International Treaties - what r the dif types of treaties?

Answer 9

Most widespread sources of international law

types;

1. Bilateral treaties: 2 states
   Form majority of treaties (⅔)
2. Multilateral treaties: 2+ states, Codify or create new international law
   Ex. Vienna convention on Laws of Treaties (VCLT), UN Convention on law of the sea (UNCLOS), Vienna convention on diplomatic relations (VCDR)
3. Constitutive treaties:
   treaties establishing international institutions
   aka treaties that create intr org
   ex. UN charter, Rome statute of the ICC

note:
a treaty can technically be both constitutive + multilateral ex. UN Charter - but its mostly seen as constitutive

Question 10

International Treaties - what is the most important treaty?

+ what does it do?
+ when was it written?

Answer 10

Vienna Convention on the Law of Treaties (1969) [VCLT]

• Treaty on treaties ⇒ it codified international customary law

Question 11

Customary law is unwritten - VCLT is a codification of customary law therefore it IS written. Why is it referred to as customary law EVEN THO it is written?

Answer 11

1. originates form customs
   - rules recognized as customary law BEFORE they were codified
2. based on state practice + opinio juris –> it stems BEYOND the written codification, it is based on state behaviour + attitudes rather than the written law
3. static in nature –> constantly develops beyond the codified version
4. must have widespread acceptance –> the widespread acceptance is what makes the law, the law is NOT what makes the widespread acceptance

Question 12

does the VCLT apply retroactively?

Answer 12

1. NO (art. 4 VCLT)

• VCLT does not apply to treaties which entered into force before its date of adoption
• Adopted in year 1969 → SO VCLT only applies to treaties made AFTER 1969

ex. It does not apply to the UN Charter because it was created in 1945

Question 13

What source of law is to be used when the VCLT is not applicable?

Answer 13

Customary Intr Law

ex. it doesn’t apply to UN charter → SO CIL would be used

Question 14

Why does the VCLT not apply to the UN Charter?

Answer 14

The UN charter was created in the year 1945, the VCLT was established in 1969

• it does not apply retroactively (art. 4 VCLT) => therefore, you cannot apply to treaties made before 1969

Question 15

What is the Criteria for when you can apply the VCLT?

Answer 15

1. was the treaty created after 1969? MUST be written after 1969
2. Is the treaty written? MUST be in written form

• Two states can form a treaty orally → BUT if this is the case you cant apply the VCLT
• If two states form a treaty through a letter = written form = you CAN apply the VCLT

3. Who are the partners involved?
   - MUST be concluded between states.
   - U can have a treaty w/ an international organization BUT you can’t apply the VCLT

Art. 2 VCLT

Question 16

Can two states who are bound by the VCLT (because they signed it) create their own rules in a treaty with regard to how this treaty will be interpreted and amended?

Answer 16

Look IN the VCLT → Art. 3 ⇒
yes, states can create their own rules within a treaty regarding interpretation and amendment, but these rules must remain consistent with international law

–>agreements made outside of the scope of the convention (abt thigns the VCLT does not cover) still matter and hold legal weight

Question 17

What is the definition of a treaty according to the Vienna convention?

(include art #)

Answer 17

Art. 2 Vienna Convention => a treaty;

1. A written agreement (must be established in written form)

=> Oral agreements / conventions/ treaties exist (means they have the intent to be legally bound) but cannot be interpreted by the VCLT

2. must be concluded between states
3. must be governed by international law (not domestic)

=>Does not apply to treaties governed by domestic law

REMEMBER!
a) established after 1969
b) form + name of the treaty are irrelevant;
=> ex. agreements, protocol, accord, memorandum, convention, covenant, pact, charter, statute

Question 18

In 2011, Sweden + Denmark concluded a verbal agreement to build a bridge. Is this an international treaty? If so, what type of an international treaty is it? Is the VCLT applicable?

Answer 18

This is a bilateral international treaty as it is concluded between two states.

The VCLT is NOT applicable because the agreement was oral - it was not written. In order for the VCLT to be applicable the treaty must be concluded in written form, between two states, after the year 1969

treaty definition listed in Art. 2 Vienna Convention

Question 19

2 main laws of treaties;

Answer 19

1. Consent to be bound => Every state possesses the capacity to conclude treaties (thus give direct consent to be bound by a treaty) - Art. 6 VCLT
2. Every treaty in force is binding + agreements must be upheld in good faith - Art. 26 VCLT

aka (1) a state can give consent to be part of a treaty (2) it must then follow rules of treaty that it consented to

Question 20

An in depth view on the 2 laws of treaties;

Explain Law 1: the Consent to be Bound

include articles

Answer 20

1. a state must give explicit consent to be bound by a treaty

=> lotus principle: we cannot assume consent
=> there r dif types of consent
=> some treaties explicitely state how consent is to be given

2. treaties must be concluded by a state representative with full powers (art. 7)

Art. 6 - details found in Art. 7-16 VCLT

Question 21

State Q participated in a conference regarding a treaty about blobfish. State Q signed the treaty, but did not ratify the treaty. In order for the treaty to be binding, it must be ratified. Did state Q give its consent to be bound by the treaty about blobfish?

Answer 21

No!

Just bc a state participated in a conference regarding the treaty it doesn’t mean they are bound by it

Therefore, a state can sign a treaty but not ratify it = not bound by it (if ratification is necessary to give consent to be bound)

Laws of Treaties = consent to be bound + pacta sunt servanda

Question 22

What are the various forms of consent a state can give?

+where is this found?

Answer 22

1. Signature (art. 12) → does not mean it is directly legally binding (unless the treaty says so) - basically indicates what the state aims to do
2. Exchange of instruments constituting a treaty (art. 13) → physical or electronic exchange of documents that represent the formal consent of the parties to be bound by the terms of the treaty
3. ratification, acceptance, or approval (art. 14) →
   Ratification = the treaty takes effect + is legally binding
4. accession (Art. 15 VCLT) → a state joins the treaty AFTER it is already signed, negotiated by other states and fully entered into force
   Has the same legal effect as ratification

all info found in VCLT

Question 23

Some treaties explicitly state how consent is to be given.

How is consent to be given in the Rome Statute + VCLT?

Answer 23

VCLT =
a treaty is subject to ratification (state must ratify it to be bound by it)

Rome Statute =
“comes into force after 30 states ratify it”

⇒ Other states can join the treaty when its ALREADY in force = this is called excession

Question 24

what is ratification?

Answer 24

• its giving formal consent to a treaty
• when u ratify a treaty the treaty takes effect + is legally binding

Question 25

what is accession?

Answer 25

a state joins a treaty LATE AFTER it has already entered into force

Question 26

Pacta Sunt Servanda

Answer 26

“agreements must be kept” Art. 26 VCLT
⇒ “every treaty in force is binding upon the parties to it and must be performed by them in good faith”

• All agreements must be met / respected
• Every treaty in force is binding upon the parties to it and must be performed by them in good faith
• When a state consents to be bound by a treaty, it has an obligation to observe this treaty

Question 27

Customary International Law - what is it?

2nd source of intr law (according to art. 38(1) ICJ)

Answer 27

• Oldest + most fundamental source of law
• Foundational source of international law → lays down the criteria for legal validity for the rest of International Law
• Customary rules arise from interactions between states

Question 28

What is the most famous codification of customary law called?

Answer 28

The VCLT = vienna convention on the law of treaties

• it is a codification of all Customary International Law
• a treaty abt treaties
• outlines what counts as a treaty, criteria, conditions

Question 29

2 elements of customary international law

list, explain, give example

Answer 29

“evidence of a general practice accepted as law”

1. state practice = material element
   => States must think a certain practice creates a legal obligation (refers to a certain behaviour)
2. opnio juris = subjective element
   => States recognize that a rule is legally binding (they must act a certain way bc they feel they r legally obligated to do so)

ex.
State practice: States must abstain from attacking civilians
Opinio juris: states accept that attacking civilians would violate their legal obligations

Established under Art 38(1)(b) ICJ Statute:

Question 30

ICJ - North Sea Continental Shelf Case (1969)

(what was it abt, what did it establish?)

Answer 30

NL, Germany, Denmark → had a dispute over the delimitation of the continental shelf in the North Sea

• NL + Denmark were party to the 1958 Geneva Convention Convention
• The convention established the equidistance rule (Art. 6) + divided the area between the 3 states→ Germany’s area was the smallest
• Germany was not part of the convention = was not bound by it + did not want to regard the rules

Germany brought 2 cases before the ICJ against NL + Denmark;

• ICJ had to rely on CIL to solve the dispute since Ger was not part of the convention
• NL + Den → argued that the equidistance rule reflects CIL (despite the fact that its new bc CIL applies to all states regardless if they’re part of a convention)
• ICJ → ruled in favor of Ger + made important pronouncements about the nature of CIL

Question 31

What were the pronouncements made by the ICJ based on the North Sea Continental Shelf Case (1969)?

Answer 31

ICJ - North Sea Continental Shelf Case (1969)

1. Generality of state practice→
   - State practice should be representative but not necessarily universal
   - All states do not have to have the same practice, as long as many states do
2. Duration of state practice →
   - There is no rigid time element
   - Even a short period of practice can contribute to the formation of customary law
3. Necessary Instances of the Practice →
   - Constancy of state practice should be extensive and uniform
   - A state must do a certain practice many times + the same way
4. Required practice of Specially Affected States →
   State practice of specially affected states carries more weight in establishing rules for customary law

ex. When discussion ocean disputes → the practice of landlocked states is less relevant, therefore they are not specially affected

note: their view is still important - might want access to ports, navigational rights, etc.

Nuclear Weapon Controversy → An argument was made stating states who do not possess nuclear weapons are not specially affected, and therefore should not be allowed to make a rule to eliminate use of nuclear weapons

Question 32

What are the requirements of state practice?

What ICJ case were the reqruiements based on?

Answer 32

ICJ - North Sea Continental Shelf Case (1969)

1. Generality of state practice→
   - State practice should be representative but not necessarily universal
   - All states do not have to have the same practice, as long as many states do
2. Duration of state practice →
   - There is no rigid time element
   - Even a short period of practice can contribute to the formation of customary law
3. Necessary Instances of the Practice →
   - Constancy of state practice should be extensive and uniform
   - A state must do a certain practice many times + the same way
4. Required practice of Specially Affected States →
   State practice of specially affected states carries more weight in establishing rules for customary law

ex. When discussion ocean disputes → the practice of landlocked states is less relevant, therefore they are not specially affected

note: their view is still important - might want access to ports, navigational rights, etc.

Nuclear Weapon Controversy → An argument was made stating states who do not possess nuclear weapons are not specially affected, and therefore should not be allowed to make a rule to eliminate use of nuclear weapons

Question 33

examples of state practice

Answer 33

1. Material Acts
   ex. seizing a vessel, sending a diplomat abroad
2. Diplomatic acts + correspondence
3. Adoption of national legislation
   ex. Prohibition of torture → best example of customary law, it is custom because all states have legislation prohibiting torture, thus states use their own will to prohibit torture = state practice
4. Courts Judgements
   Courts are state organs → court rulings represent what a state thinks + what they want to do
5. Conscious abstention from action (for prohibitive rules)
   ex. States must abstain from attacking civilians

Question 34

examples of opinio juris

Answer 34

Opinio Juris Sive Necessitatis
1. Public statements
2. Official publications
3. Correspondence
4. Decisions of national courts
5. Treaty provisions
6. Resolutions adopted by an international organization or at an international conference

Question 35

Define opinio juris + limitation

Answer 35

States must feel they are conforming to what amounts to a legal obligation (not acting merely due to tradition, courtesy, other reasons)

States act because they are legally required to do so

Limitation: difficult to ascertain (discover) since states don’t explain + justifying their actions

Question 36

When a state deviates from a certain state practice - how do we know they are violating the law or creating a new customary law?

Answer 36

• As long as they do not claim that they do so because international law allows their actions, and as long as other states call out the violations, CIL is not modified

ex. Russia invades Ukraine but argues IL is not violated as they are creating/modifying the law. IF other states disagree + express their legal opinion = indication there was a violation

ex. prohibition of torture → existence of states who keep torturing people does not indicate that there is no prohibition

Question 37

General principles of Law

Answer 37

Introduced to avoid ‘non liquet’ situations = no legal rules applicable

ex. U have a dispute but ICJ has no law to apply so it falls back down to general principles
= ‘fill in the gap’

Examples of the principles;
-Equity = everyone should be treated w/ fairness + justice, decisions should be done impartially
- Good faith = entities must act w/ honesty + sincerity
- Due diligence = taking reasonable care to avoid harm
- Pacta sunt servanda = agreements must be kept - honouring contracts
- Conflict rule = helps determine what to do when laws or legal principles clash
a) lex posteriori = new law>old law
b) lex specialis = specific rules > vague rules

=> Formed primarily within domestic legal systems

Question 38

sources of law 4/5

Judicial decisions + teachings of highly qualified publicists

(what is special abt them?)

Answer 38

No stare decisis = no doctrine of precedent in international law

-hus, international courts cannot be bound by previous judgements
→ can change case law
→ does not happen often - don’t try to deviate from them without reason

ex. Intr Court of HR has changed their practice (initially made one judgment, later changed the judgment on the same issue)

=> International courts often rely on the practice of other international courts or judicial bodies, esp specialized ones

=> Domestic court judgements may contain important pronouncements on international law

Question 39

Teachings of highly qualified publicists of various nations

Answer 39

Invisible college of international lawyers

In the past → (ex. 16th century) writings of most authoritative scholars were seen as a reflection of intr law

Today → teachings of scholars are subsidiary as there are other more reliable sources - not used as a formal source

=>You can see references to other ppls work
ICJ can use a opinions of scholars to set the mood

Question 40

What are other sources of Intr Law Beyond Art. 38?

Answer 40

1. Unilateral Declarations = states can create legal obligations for themselves by means of pronouncements
2. Soft Law = Not legally binding - illustrative of political and moral context in which international law operates and develops

=> Indicates certain legal developments are taking place
ex. UN General Assembly, general comments by HR bodies, codes of conduct

Question 41

give an example of a unilateral declaration

(specific case)

Answer 41

ICJ Nuclear Test Case 1974:
“It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations”

• France did nuclear tests near Australia, Australia mad → france promised not do conduct nuclear tests near Australia anymore
• ICJ recognized the promise of France as an official declaration

REMEMBER;
unilateral declaraiton = states can create legal obligations for themselves by means of pronouncements

Question 42

what are two Theoretical Models explaining the relation between International and National Law

Answer 42

Monism + Dualism

Question 43

Monism

Answer 43

International and Domestic Law form one normative system

When a state ratifies a treaty → intr law automatically becomes part of national legislation

ex.
Constitution of Ukraine Art. 9;
“International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.”

Art. 5 Bulgarian Constitution

Question 44

Dualism

Answer 44

International and Domestic law are two separate systems

When a state ratifies a treaty → international law must be incorporated into domestic law

Does not automatically become part of national legislation

ex.
In the UK;
“a treaty has no effect in municipal law until an Act of Parliament is passed to give effect to it.”

= international treaties only have effect after they are incorporated into national law

US

Question 45

Mixed Approach

Answer 45

=> neither pure monism nor pure dualism accurately captures the complexity of the relationship between international law and domestic law

=> it recognizes that sometimes international laws automatically become part of a country’s laws (monism), other times international rules need laws to be applied domestically (dualism)

=> certain international norms (ex. HR, CL), can directly affect a country’s laws without needing specific domestic rules.

ex. rules against torture can automatically be part of a country’s laws + courts can enforce them without new laws

= so basically Independent normative systems often create direct, self-executing obligations within domestic legal orders

Question 46

is there a hierarchy of Sources under International Law?

Answer 46

• Generally there is no hierarchy
• There IS a distinction of primary + secondary sources under Art. 38 ICJ statute
• Secondary sources of law (ex. Case law + teachings of scholars) → are used as ‘gap fillers’ for interpretation to identify rules

!DO NOT SAY there is a hierarchy on exam!

Question 47

True or false; In case of conflict between a treaty rule and a rule of customary international law, the treaty rule prevails because it is higher in the hierarchy of sources.

Answer 47

False → There IS NO hierarchy of sources
Jus Cogens → the only type of international law which can negate any other sources of law

Question 48

what is Jus Cogens

Question 49

True or false; In case of conflict between a treaty rule and a rule of customary international law, the treaty rule prevails because it is more specific than the customary rule?

Answer 49

True - more specific rule ALWAYS prevails

Question 50

What to do if a primary international source of law contradicts a secondary international source of law?

Answer 50

Depends on the circumstances - but overall follow the principle of;

=> lex specialis → more specific rule prevails
=> lex posterior derogat legi → newer rule prevails

Question 51

According to international law, are states supposed to follow monism or dualism?

Answer 51

IL does not indicate a monist or dualist rule of states → they can choose

Question 52

can states invoke a national law to justify not performing a treaty?

Answer 52

States cannot invoke national law to justify not performing a treaty

Question 53

what happens when domestic law clashes w/ international law?

Answer 53

If domestic rule clashes with IL rule, IL rule prevails → if states disobey this they will be held internationally liable

= If a State chooses not to perform its obligation under IL and applies instead a conflicting domestic rule → it will be held internationally responsible for a violation of IL