Week 3: Sources of International Law Flashcards
What was self-determination?
After 1945, colonies allowed to decide if they wanted to be separate. UK had to part with all it territories
What is the case of Mauritius?
UK was unlawful when trying to give part to USA when on its way to independence and statehood
Why was this?
Mauritius had the right to be a state within the given terrioty that was stable during it being a colony.
Secession?
Minorities that are persecuted are allowed to leave.
Do minorities have the same right as colonies?
If minority takes hold and something tarnishes the government in power then there is a chance.
What makes the lawful government?
It is who has effective control over the territory
What is international non-intervention?
Not getting involved
Summary?
Use Monte Video convention, declaratory too, political legitimacy helps.
What two types of sources of law are there? What is the difference
Formal and material. Formal sources of law are those that derive validity. Material sources are those that derive the matter.
What are the four formal sources of law?
- Treaties
- Customs
- General principles of law of civilized nations
- Judicial decisions and writings of highly qualified publishers
Break down treaty into formal and material
Formal source is the treaty, material source are the written documents
What about writers?
Judicial decisions and publishers considered in the same category. Much less true at domestic level.
Why is this?
No hierarchy of courts in international law
What happens if you are member of council of Europe ?
Must submit to the European Court of Human Rights, but not rest of world.
Do they have precedential standing?
Want consistency but do not create general principles for whole world
What about the ICJ
Authoritative but not binding.
What is customary law?
Its a community of wills that inline themselves that become an obligation even to those who don’t like them as it is the will of the community
Difference with treaties?
Explicit agreements from states, custom progresses from will to legally binding custom
What is persistent objection?
Where a state continually says that they don’t agree with a custom. Have to object everytime
What is jus cogens?
Form of custom which there can be no derogation. Creates norms of international law that cannot be set aside. Cant make a treaty that goes against it.
What are examples
- Genocide
- Prohibition of using force to settle disputes
- Torture
How does custom become a uniform norm?
States must be seen to comply regularly. Signing treaty doesn’t follow this idea, since it suggests they need to be bound before it becomes binding.
How do you look at state practice for custom?
- Find diplomatic statements or rulings
- Use of treaty suggests not custom
- Any act or statement which its posture on international things are shown
What is practice?
Stuff a state does both locally and internationally
What is opinio juris?
an opinion of law
How do you find a states opinio juris?
- Acts passed
- Courts decisions
- The opinion of judges within their courts
- When they question that something in a treaty is already custom
Summary?
You need evidence of settled practice, enough opinio juris and if other states regard actions of another state as breaking a norm
