Week 5 - Customary International Law

Question 1

What are 2 types of Sources of law?

Answer 1

1) Formal (binding rules of general application)

2) Material (evidence of legally binding rule) (caselaw, ILC commentaries, textbook)

Question 2

What and where is the applicable law of the ICJ? (5)

Answer 2

1) Art 38 ICJ Statute
2) International Conventions
3) International custom
4) general principles of law
5) subsidiary means:: judicial decisions and teachings of most qualified publicists

Question 3

What are 2 potential sources of law not included in ICJ’s applicable law?

Answer 3

1) Unilateral declarations of IOs (e.g. UNSC)

2) Unilateral statements of States

Question 4

Is there a formal hierarchy of sources and what is the consequence of that? (2)

Answer 4

1) only primary (convention, custom, general principles) > subsidiary
2) General principles can resolve conflicts of sources (e.g. lex specialis, and lex posterior)

Question 5

What are the requirements for CIL? (3)

Answer 5

1) North Sea Continental Shelf
2) Actual Practice
3) Opinio juris

Question 6

What is required for opinio juris? (2)

Answer 6

1) North Sea Continental Shelf

2) State practice carried out with belief that the practice is required by a rule of law

Question 7

How long time is required for CIL to arise? (2)

Answer 7

1) North Sea Continental Shelf
2) short period of time suffices if State practice (incl. of specially affected States) was both “extensive and virtually uniform”

Question 8

What is instant custom? (3)

Answer 8

1) Cheng
2) if sufficiently strong opinio juris there is no requirement of state practice
3) Cold War, states force US and USSR through UNGA to refrain from militarizing space

Question 9

What is the effect of inconsistency of actual practice? (2)

Answer 9

1) small degree of inconsistency does not prevent emergence of CIL when outweighed by large amounts of consistent practice
2) Anglo-Norwegian Fisheries

Question 10

What can amount to actual Practice? (5)

Answer 10

1) Verbal acts (Jurisdictional Immunities
2) conduct in relation to internal sphere by any state organ/agent (Interhandel)
3) domestic leiglsation (Jurisdictional Immunities)
4) decisions by national courts (Jurisdictional Immunities)
5) Inaction/abstention (Lotus)

Question 11

Factors for determining whether breaches of a rule or a new rule of CIL? (3)

Answer 11

1) Military and Paramilitary Activities
2) How does the acting state justify the inconsistent conduct?
3) Is the inconsistent conduct accepted/rejected by other states

Question 12

Why is it problematic relying on UNGAres for Opinio juris?

Answer 12

UNGAres voting is not necessarily based on a belief of a current obligation existing.

Question 13

What is problematic with the “specially affected State” doctrine? (2)

Answer 13

1) “respectable guise” by powerful states to ensure their views are considered (Danilenko)
2) for nuclear weapons: who are specially affected?

Question 14

What are 2 exceptions to the universalism of CIL?

Answer 14

1) persistent/subsequent objector

2) Local, regional or bilateral custom

Question 15

What is the persistent objector doctrine? (2)

Answer 15

1) Anglo-Norwegian Fisheries
2) a State can exempt itself from application of new rules of CIL if it persistently and explicitly object during its emergence

Question 16

What is a subsequent objector?

Answer 16

Same as a persistent objector but who objects to a subsequent change to a CIL rule

Question 17

What are arguments undermining the persistent objector doctrine? (5)

Answer 17

1) Only mentioned in Anglo-Norwegian Fisheries and Asylum
2) A case was never decided on the basis of it
3) North Sea Continental Shelf seems to indicate CIL applies universally
4) Contrary to the universal nature of CIL
5) makes identification of legal obligations difficult

Question 18

What is an argument in favour of the persistent objector doctrine?

Answer 18

in line with a consensualist approach to IL

Question 19

What is regional and bilateral custom? (3)

Answer 19

1) CIL only applying between certain States
2) Regional custom has never been found (Asylum)
3) Bilateral custom requires long continued practice between 2 States accepted by them as regulating their relations (Right of Passage) (long-term acquiescence on part of INDI sufficed)

Question 20

What are 4 problems with CIL?

Answer 20

1) Difficult ascertaining the emergence of new rules
2) Newly decolonized States have had no say in CIL
3) considerable treaty-making since 1945 means smaller role for CIL
4) it’s a social process which can hardly be categorized by usus and opinio juris (why not consider wider evidence?)

Question 21

What are 3 benefits of CIL?

Answer 21

1) fills haps and defines interrelation between treaties
2) regulates an area until treaty has been concluded and ratified
3) regulates areas too politically controversial for treaties

Question 22

What is the interrelation between CIL and treaty? (2)

Answer 22

1) Military and Paramilitary Activities

2) even if identical in content they coexist

Question 23

What is the role of general principles as a source of law? (2)

Answer 23

1) mainly included to avoid court declaring the law too unclear (Hernández)
2) Mainly only referred to when no treaty or CIL

Question 24

Are ICJ caselaw binding? (3)

Answer 24

1) Art 59 ICJ Statute
2) Decisions do not bind the court but only the parties in respect of that particular case
3) however ICJ will only depart from previous caselaw where it finds particular reasons to do so (Application of the Genocide Convention)

Question 25

What is the effect of unilateral statements of States? (3)

Answer 25

1) Statements given publicly with intention to be bound binds the state
2) No reaction from other States is required
3) Nuclear Tests

Question 26

What is the effect of UNGAres? (2)

Answer 26

1) No formal power to bind MS
2) However may create CIL
3) depends on content, conditions for adoption and opinio juris as to normative character (Chagos)

Question 27

What is the effect of UNSCres? (3)

Answer 27

1) UNSC decisions (not merely res) binds all states (Art 25 UNC)
2) UNSC imposed obligations take priority (Art 103 UNC)
3) UNSC has come close to legislating on terrorism (Talmon)

Question 28

What are results of a breach of jus cogens? (3)

Answer 28

1) States must cooperate to bring it to an end through lawful means (Art 40(1) ARSIWA)
2) Non-recognition of breach (Art 41(2) ARSIWA; Wall)
3) Invalidity of reservations in breach ( UNHRC Comment 24)

Question 29

What are NOT consequences of breaches of jus cogens? (2)

Answer 29

1) conferral of jurisdiction on any forum (Armed Activities)

2) Suspension of IL rules on immunity (Jurisdictional Immunities)

Question 30

What is the consequence of UNSCres contrary to jus cogens? (2)

Answer 30

1) Lauterpacht: jus cogens prevail (Application of Genocide Convention - Dissent)
2) Tzanakpoulos: States can take countermeasures against UNSCres

Question 31

What are examples of jus cogens? (3)

Answer 31

1) aggressive use of force (Nicaragua)
2) war crimes (Jurisdictional Immunities)
3) Self-determination? (East Timor)(“essential principle of IL”)

Question 32

In what 3 ways may CIL and Treaty affect each other’s creation?

Answer 32

1) Codification by treaty of CIL
2) Crystallization (of CIL through treaty negotiation)
3) Generation/creation (of CIL through state practice consistent with treaty)

Question 33

What is required for actual Practice? (2)

Answer 33

1) North Sea Continental Shelf

2) Widespread and representative particpation including by specially affected States

Question 34

What are the 3 requirements for CIL to be generated by treaty? (4)

Answer 34

1) general practice (of non-parties to treaty)
2) opinio juris (belief in obligation external to treaty)
3) fundamentally norm creating character
4) North Sea Continental Shelf

Question 35

What does it take for a treaty provision to be of fundamentally norm creating character? (5)

Answer 35

1) Must be clearly phrased
2) must not permit reservations
3) must not be secondary to another provision
4) must be substantive (rather than procedural)
5) North Sea Continental Shelf

Question 36

What is required for CIL to crystallize through treaty conclusion? (3)

Answer 36

1) the CIL must already be emergent (with practice and opinio juris)
2) possibility of reservations to provision in treaty indicates not emergent CIL
3) North Sea Continental Shelf

Question 37

What does Nicaragua suggest as to the relationship between practice and opinio juris? (3)

Answer 37

1) a rule in opinio juris must be confirmed by practice
2) this ascribes subsidiary role to practice (orthodoxly they are of equal value)
3) probably just slip of tongue