Week 3: Sources of International Law

Question 1

What was self-determination?

Answer 1

After 1945, colonies allowed to decide if they wanted to be separate. UK had to part with all it territories

Question 2

What is the case of Mauritius?

Answer 2

UK was unlawful when trying to give part to USA when on its way to independence and statehood

Question 3

Why was this?

Answer 3

Mauritius had the right to be a state within the given terrioty that was stable during it being a colony.

Question 4

Secession?

Answer 4

Minorities that are persecuted are allowed to leave.

Question 5

Do minorities have the same right as colonies?

Answer 5

If minority takes hold and something tarnishes the government in power then there is a chance.

Question 6

What makes the lawful government?

Answer 6

It is who has effective control over the territory

Question 7

What is international non-intervention?

Answer 7

Not getting involved

Question 8

Summary?

Answer 8

Use Monte Video convention, declaratory too, political legitimacy helps.

Question 9

What two types of sources of law are there? What is the difference

Answer 9

Formal and material. Formal sources of law are those that derive validity. Material sources are those that derive the matter.

Question 10

What are the four formal sources of law?

Answer 10

1. Treaties
2. Customs
3. General principles of law of civilized nations
4. Judicial decisions and writings of highly qualified publishers

Question 11

Break down treaty into formal and material

Answer 11

Formal source is the treaty, material source are the written documents

Question 12

What about writers?

Answer 12

Judicial decisions and publishers considered in the same category. Much less true at domestic level.

Question 13

Why is this?

Answer 13

No hierarchy of courts in international law

Question 14

What happens if you are member of council of Europe ?

Answer 14

Must submit to the European Court of Human Rights, but not rest of world.

Question 15

Do they have precedential standing?

Answer 15

Want consistency but do not create general principles for whole world

Question 16

What about the ICJ

Answer 16

Authoritative but not binding.

Question 17

What is customary law?

Answer 17

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

Question 18

Difference with treaties?

Answer 18

Explicit agreements from states, custom progresses from will to legally binding custom

Question 19

What is persistent objection?

Answer 19

Where a state continually says that they don’t agree with a custom. Have to object everytime

Question 20

What is jus cogens?

Answer 20

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.

Question 21

What are examples

Answer 21

1. Genocide
2. Prohibition of using force to settle disputes
3. Torture

Question 22

How does custom become a uniform norm?

Answer 22

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.

Question 23

How do you look at state practice for custom?

Answer 23

1. Find diplomatic statements or rulings
2. Use of treaty suggests not custom
3. Any act or statement which its posture on international things are shown

Question 24

What is practice?

Answer 24

Stuff a state does both locally and internationally

Question 25

What is opinio juris?

Answer 25

an opinion of law

Question 26

How do you find a states opinio juris?

Answer 26

1. Acts passed
2. Courts decisions
3. The opinion of judges within their courts
4. When they question that something in a treaty is already custom

Question 27

Summary?

Answer 27

You need evidence of settled practice, enough opinio juris and if other states regard actions of another state as breaking a norm