Introduction - ---
-Definition of International Law - -That system of law governing the international legal relations between states, international organisations, including individual responsibility for natural persons for breach of international law
-Characteristics of International Law as c...
International Law 120 questions and answers
Introduction - ---
-Definition of International Law - -That system of law governing the international legal relations
between states, international organisations, including individual responsibility for natural persons
for breach of international law
-Characteristics of International Law as compared to National Law - -- Structured horizontally,
196 states all equal actors, decentralized
- National law structured vertical and hierarchical in nature, centralized institutions
-What features characteristic of national law does international law lack? - -1. No international
legislature, the UN is merely a forum whereby non-binding resolutions are adopted
2. No courts of compulsory jurisdiction binding on states, ICJ only has compulsory jurisdiction if
accepted by both parties
3. No central set of sanctions to enforce the law, Security Council has limited powers to impose
economic and military sanctions, but no general authority to police
-Is international law, law? - -- John Austin, writing in 1832 would say no, proper law is the
command of the sovereign backed by sanctions (command theory): international law in his view
is not law as it fails to meet the definition, he instead argues it is merely 'positive morality'
- HLA Hart in 1961 argued differently, equating international law with the legal system of more
primitive societies, who had primary rules, but had yet to develop secondary rules. International
law merely lacked the enforcement mechanisms of more developed areas of law through:
1. Absence of a legislature
2. Absence of courts with compulsory jurisdiction
3. No system of (official) sanctions
-Do states obey international law? - -- Sanction of reciprocity is conducive to general compliance
- Breaches do not justify the conclusion that they are not generally obeyed
- Complied with generally because it underlies all international relations
- Breach might be a result of genuine uncertainty about facts or interpretation of treaties
-What is the basis of obligation in international law? - -- Classical natural law writers identified
the basis of obligation in the 16th and 17th centuries as objective natural order which stemmed
from a higher source
- By the 19th century, this was replaced by positivism, whereby the basis of obligation was found
in state consent to be bound by treaty rules
- This consensual explanation remains true of obligations assumed under treaties, but is
problematic for customary law where the basis of obligation is found in community consensus,
and is imposed rather than consented to
,-International Law Models - -- Grotian/Westphalian Model: characterized by regulated
cooperation between states, with each pursuing its own national interests
- Kantian Model: emphasises communitarian value as the main focus of international law rather
than preoccupation with national self-interest, advocates trans-national solidarity
-Sources of International Law - ---
-Article 38(1) Statute of the ICJ is recognised as the most authoritative statement of international
law sources - -a) Treaties
b) Customary international law
c) General principles of law recognised by civilised nations
d) Judicial decisions and writings of publicists
- heirarchial, custom and treaties equal
-Custom under art 38(1)(b) - -Two Elements:
1. Material/quantitative: general practice
2. Subjective/qualitative: accepted as law (opinio juris)
-Material/Quantitative Element - -- Test is general, not universal acceptance
-North Sea Continental Shelf Cases (majority) - -- Doubts as to normative character
- Rule was subject to special circumstances in that states were permitted to make reservations,
which contracted out of the rule's normative character - vetoes the formation of custom
- State practice was neither "extensive or virtually uniform" = not enough to justify general
acceptance
-Lachs J (dissent) - -- Adopted a spectral analysis, analysing state practice by noting matters not
addressed by the majority
- Number of ratifications cannot in itself be regarded as conclusive of general acceptance
- Evidence should be sought in the behaviour of a number of states and he great majority of the
interested states
-Tanaka J (dissent) - -- Factors required for the formation of custom must not be interpreted too
rigidly, but relative to the circumstances and more elastic
- International community must place weight on the social necessity of the aim and purposes
served by the custom
-Nicaragua - -- State conduct need not be perfectly, but generally consistent
-Subjective/Qualitative Element - -- Accepted as a matter of legal obligation - opinio juris
-North Sea Continental Shelf Cases - -- Majority required subjective element to be affirmatively
established over and above material element
- Dissenting opinions took presumptive approach:
- Lachs J: proof of material element constitutes prima facie evidence of opinio juris
, - Sorenson J: state practice is sufficient evidence of this element
-Nicaragua and Nuclear Weapons Advisory Opinion - -- Opinio juris is lacking where conduct is
prompted by extra-legal reasons i.e. foreign policy
-Regional Custom - -- Columbia v Peru: ICJ recognised the possible existence of a regional rule
of custom among Latin American States
- Nicaragua v US: acknowledged existence of cusom "particular to the inter-American legal
system"
- Portugal v India: ICJ upheld bilateral rule of custom, but opinio juris must be proved in each
state
-Persistent Objection - -- A state which has persistently objected to a rule during its gestation is
exempt from the customary rule, provided evidence of this objection is manifest
- Any state that becomes independent after the rule has crystallised is bound
- If the emerging rule becomes established, leaves an objecting state in an ambiguous position
- Likely has temporary application
- Anglo-Norwegian Fisheries and North Sea and Nuclear Tests cases
-Treaties under art 38(1)(a) - -- Definition per Vienna Convention on the Law of Treaties, art 2(1)
(a): "an international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation"
- Generic term covering all kinds of descriptions
- Functions can range from constitutive to quasi-legislative
- Subject matter of large scope
- Obligatory nature stems from the principle that agreements are binding
-Negotiation and Implementation - -- Prerogative of the Executive
- No prescribed form or procedure
- Implementation of treaty obligations in national law requires legislative action in common law
jurisdictions if the subject matter will chance the rights and responsibilities of citizens, after
which can ratify
- Where a state has not been an original signatory, it can become party through accession
-Key Articles - -Article 102 UN Charter
- Every treaty entered into by any member of UN will be registered and published by UN
secretariat
- No party of any such treaty may invoke that treaty before any organ of the UN before
registration
Article 18 Vienna Convention
- A state that has signed a treaty subject to ratification must refrain from acts that would defeat
the object and purpose of the treaty when it has signed the treaty or until it has made its intention
clear not to become a party to the treaty
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