Week 5 - Customary International Law Flashcards
What are 2 types of Sources of law?
1) Formal (binding rules of general application)
2) Material (evidence of legally binding rule) (caselaw, ILC commentaries, textbook)
What and where is the applicable law of the ICJ? (5)
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
What are 2 potential sources of law not included in ICJ’s applicable law?
1) Unilateral declarations of IOs (e.g. UNSC)
2) Unilateral statements of States
Is there a formal hierarchy of sources and what is the consequence of that? (2)
1) only primary (convention, custom, general principles) > subsidiary
2) General principles can resolve conflicts of sources (e.g. lex specialis, and lex posterior)
What are the requirements for CIL? (3)
1) North Sea Continental Shelf
2) Actual Practice
3) Opinio juris
What is required for opinio juris? (2)
1) North Sea Continental Shelf
2) State practice carried out with belief that the practice is required by a rule of law
How long time is required for CIL to arise? (2)
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”
What is instant custom? (3)
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
What is the effect of inconsistency of actual practice? (2)
1) small degree of inconsistency does not prevent emergence of CIL when outweighed by large amounts of consistent practice
2) Anglo-Norwegian Fisheries
What can amount to actual Practice? (5)
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)
Factors for determining whether breaches of a rule or a new rule of CIL? (3)
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
Why is it problematic relying on UNGAres for Opinio juris?
UNGAres voting is not necessarily based on a belief of a current obligation existing.
What is problematic with the “specially affected State” doctrine? (2)
1) “respectable guise” by powerful states to ensure their views are considered (Danilenko)
2) for nuclear weapons: who are specially affected?
What are 2 exceptions to the universalism of CIL?
1) persistent/subsequent objector
2) Local, regional or bilateral custom
What is the persistent objector doctrine? (2)
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
What is a subsequent objector?
Same as a persistent objector but who objects to a subsequent change to a CIL rule
What are arguments undermining the persistent objector doctrine? (5)
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
What is an argument in favour of the persistent objector doctrine?
in line with a consensualist approach to IL
What is regional and bilateral custom? (3)
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)
What are 4 problems with CIL?
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?)
What are 3 benefits of CIL?
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
What is the interrelation between CIL and treaty? (2)
1) Military and Paramilitary Activities
2) even if identical in content they coexist
What is the role of general principles as a source of law? (2)
1) mainly included to avoid court declaring the law too unclear (Hernández)
2) Mainly only referred to when no treaty or CIL
Are ICJ caselaw binding? (3)
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)
What is the effect of unilateral statements of States? (3)
1) Statements given publicly with intention to be bound binds the state
2) No reaction from other States is required
3) Nuclear Tests
What is the effect of UNGAres? (2)
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)
What is the effect of UNSCres? (3)
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)
What are results of a breach of jus cogens? (3)
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)
What are NOT consequences of breaches of jus cogens? (2)
1) conferral of jurisdiction on any forum (Armed Activities)
2) Suspension of IL rules on immunity (Jurisdictional Immunities)
What is the consequence of UNSCres contrary to jus cogens? (2)
1) Lauterpacht: jus cogens prevail (Application of Genocide Convention - Dissent)
2) Tzanakpoulos: States can take countermeasures against UNSCres
What are examples of jus cogens? (3)
1) aggressive use of force (Nicaragua)
2) war crimes (Jurisdictional Immunities)
3) Self-determination? (East Timor)(“essential principle of IL”)
In what 3 ways may CIL and Treaty affect each other’s creation?
1) Codification by treaty of CIL
2) Crystallization (of CIL through treaty negotiation)
3) Generation/creation (of CIL through state practice consistent with treaty)
What is required for actual Practice? (2)
1) North Sea Continental Shelf
2) Widespread and representative particpation including by specially affected States
What are the 3 requirements for CIL to be generated by treaty? (4)
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
What does it take for a treaty provision to be of fundamentally norm creating character? (5)
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
What is required for CIL to crystallize through treaty conclusion? (3)
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
What does Nicaragua suggest as to the relationship between practice and opinio juris? (3)
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
