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26 Cards in this Set
- Front
- Back
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who decides in accordance with international law |
the international court of justice |
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name all four of the subsidiary means for the determination of rules of law |
international conventions, international custom, the general principles of law, judicial decisions, |
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what is international custom evidence of when used as a subsidiary means for the determination of rules of law |
as evidence of a general practice accepted by law. |
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'what' establishes rules expressly recognised by the contesting states? |
international conventions |
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jus cogens |
those norms recognized by the international community as a whole as being fundamental to the maintenance of an international legal order. |
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when is a 'treaty' defined? |
Vienna Convention on the Law of Treaties article 2 paragraph 1 |
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definition of a treaty |
a treaty is 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 ad whatever its particular designation. |
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how is a treaty entered into force |
adoption of the text of a treaty, signature, ratification (we consent to be bound by the treaty |
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ratification |
er consent to be bound by the treaty |
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as well as external ratification, a treaty must go through |
internal ratification (e.g. Chile, approval of Congress) |
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the two element of customary law |
practice and opinio juris |
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which case exemplifies the two elements of customary law |
mention by the ICJ in the libya/ Malta Continental shelf case and the text of the statute of the court |
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practice: 'constant and uniform' 'extensive and virtually uniform' 'special attention to states whose interests are specifically affected' match to the case.. |
ICJ asylum case North Sea Continental Shelf Case North Sea Continental Shelf Case |
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explain the flexibility within customary law + the case example |
practice does not have to be in rigorous conformity, state conduct should in general be consistent with rules, however conduct that is inconsistent with the rules are to be seen as a breach of that rule, not an indication of the recognition of a new rule. |
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what is opinio juris |
where states must behave in a way that their conduct s evidence of a belief that this practice in rendered obligatory by the existence of a rule of law requiring it |
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the evidence of opinio juris presented in the ICJ Nicaragua Case |
voting in a certain way concerning General Assembly resolutions is evidence of opinio juris |
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is instant custom a requirement of customary law? why? |
North Sea Continental shelf case, the ICJ stated it was highly debatable because before customary law it was just conventional rule (an indispensable requirement) |
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what is customary law? |
customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time |
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there can be custom between a few states, give two examples and their cases |
regional custom (political asylum in South America) Right of Passage over Indian territory case, between India and Portugal) |
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examples of proof of conduct (evidence of both practice and opinio juris of customary law) |
administrative acts, legislation, decisions of national courts (e.g. treaty making), voting in a general assembly, comments made by governments on drafts, decisions of national courts , treaties, |
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what is a persistent objector? |
states that always oppose to the formation of a custom, not bound if the conduct becomes customary law |
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general assembly resolutions are not binding but recommend, what is this called? |
soft law |
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what is soft law? |
The term "soft law" refers to quasi-legal instruments which do not have any legally binding force |
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are security council resolutions a source of law? |
no, however the resolutions are binding on all members of the UN, articles 24 and 25 UN Charter |
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where is it states that GA resolutions are recommended? |
UN Charter Chapter IV General Assembly |
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example of where a unilateral act of state may give rise to international legal obligations. |
ICJ Nuclear test case (New Zealand v France) where France announced that they were not going to do anymore atmospheric nuclear explosions which meant that the court did not make a ruling. however a unilateral act needs to be accepted, and the other party has not accepted it so cannot have effect, therefore not a unilateral act, but an incomplete bilateral act. |
