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What is the general nature of international law?

In the case of the S.S. Lotus (French Republic v. Turkish Republic, Series A, No. 10, 1927, p.
18):

International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the
relations between these co-existing independent communities or with a view to the achievement
of common aims.

What is jus cogens?

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is

1. a norm accepted and recognized by the international community of States as a whole as a


norm from which no derogation is permitted and
2. which can be modified only by a subsequent norm of general international law having the
same character.

What are erga omnes obligations?

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY,


LIMITED (BELGIUM v. SPAIN), 1970, para. 33, ICJ:

When a State admits into its territory foreign investments or foreign nationals, whether natural or
juristic persons, it is bound to extend to them the protection of the law and assumes obligations
concerning the treatment to be afforded them. These obligations, however, are neither absolute
nor unqualified. In particular, an essential distinction should be drawn between the obligations of
a State towards the international community as a whole, and those arising vis--vis another State
in the field of diplomatic protection. By their very nature the former are the concern of al1
States. In view of the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes.

What is state sovereignty?

In the Island of Las Palmas case (between the Netherlands and the United States), Vol. II of the
Reports of International Arbitral Awards, 1928, p. 839, Judge Max Huber:

Sovereignty in the relations between States signifies independence. Independence in regard to a


portion of the globe is the right to exercise therein to the exclusion of any other State, the
functions of a State. The development of the national organization of States during the last few
centuries, and, as a corollary, the development of international law, have established this
principle of the exclusive competence of the State in regard to its own territory in such a way as
to make it the point of departure in settling most questions that concern international relations.

What are the sources of international law?

Article 38, par. 1, Statute of the International Court of Justice, provides:

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

a. International conventions, whether general or particular, establishing rules expressly


recognized by the contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law as recognized by civilized nations;
d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Article 59: The decision of the Court has no binding force except between the
parties and in respect of that particular case.

Par. 2: This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.

May a norm be both a treaty rule and a customary norm at the same time?

What is customary international law? What are its elements?

General Practice or State Practice

In the North Sea Continental Shelf cases (Germany vs. Denmark and the Netherlands), 1969,
para. 74, ICJ:

As regards the time element, the Court notes that it is over ten years since the Convention was
signed, but that it is even now less than five since it came into force in June 1964, and that when
the present proceedings were brought it was less than three years, while less than one had
elapsed at the time when the respective negotiations between the Federal Republic and the other
two Parties for a complete delimitation broke down on the question of the application of the
equidistance principle. Although the passage of only a short period of time is not necessarily, or
of itself, a bar to the formation of a new rule of customary international law on the basis of what
bras originally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and virtually uniform in
the sense of the provision invoked; and should moreover have occurred in such a way as to
show a general recognition that a rule of law or legal obligation is involved.
opinio juris sive necessitatis

Para. 77: Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what amounts
to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough.

Should the practice of CIL be perfect?

In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (US v.
Nicaragua), 1986, para. 186, ICJ:

It is not to be expected that in the practice of States the application of the rules in question should
have been perfect, in the sense that States should have refrained, with complete consistency,
from the use of force or from intervention in each other's internal affairs. The Court does not
consider that, for a rule to be established as customary, the corresponding practice must be in
absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State
acts in a way prima facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself, then whether or not the
State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm
rather than to weaken the rule.

What is the principle of persistent objector?

Is there hierarchy to sources of IL?

Brownlie: in practice the Court may be expected to observe the order in which they appear: (a)
and (b) are obviously important sources, and the priority of (a) is explicable by the fact that this
refers to a source of mutual obligations.

Akehurst: treaties are easier to prove than custom and custom is easier to prove than general
principles of law. (1976 British Yearbook Intl. L. 273)

Schwarzenberger, International Law, p 23.

When drafting the original text of Article 38, the Advisory Committee of Jurists considered a
proposal that it should state that the sources listed be considered by the court in the
undermentioned order in the order (a) to (d) in which they now appear.

May a unilateral declaration or act of State result in legal obligations?


Nuclear Tests Case (New Zealand v. France), 1974, para. 46, ICJ:

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Declarations of this kind may be,
and often are, very specific. When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with
an intent to be bound, even though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro quo, nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be inconsistent with the strictly
unilateral nature of the juridical act by which the pronouncement by the State was made.

Para. 49:

One of the basic principles governing the creation and performance of legal obligations,
whatever their source, is the principle of good faith. Trust and confidence are inherent in
international co-operation, in particular in an age when this co-operation in many fields is
becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties
is based on good faith, so also is the binding character of an international obligation assumed by
unilateral declaration. Thus interested States may take cognizance of unilateral declarations and
place confidence in them, and are entitled to require that the obligation thus created be respected.

What is the principle of persistent objector?

Fisheries Case (United Kingdom v. Norway), 1951, para. 48, ICJ:

In any event the ten-mile rule [in the delimitation of territorial waters across bays] would appear
to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it
to the Norwegian coast.

May a norm be both a treaty rule and a customary norm at the same time?

In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (US v.
Nicaragua), 1986, para. 179, ICJ:

It will therefore be clear that customary international law continues to exist and to apply,
separately from international treaty law, even where the two categories of law have an identical
content.

Article 38, VCLOT: Nothing in articles 34 to 37 precludes a rule set forth in a treaty from
becoming binding upon a third State as a customary rule of international law, recognized as such.

Will the codification of customary law deprive it of its customary nature?


In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (US v.
Nicaragua), 1986, para. 175, ICJ:

. . . even if the customary norm and the treaty norm were to have exactly the same content, this
would not be a reason for the Court to hold that the incorporation of the customary norm into
treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty
norms. . . . There are no grounds for holding that when customary international law is comprised
of rules identical to those of treaty law, the latter supervenes the former, so that the customary
international law has no further existence of its own.

May states, by a treaty, derogate from a customary norm of international law?

Case Concerning Elettronica Sicula (US v. Italy), 1989, para. 50, ICJ:

The Chamber has no doubt that the parties to a treaty can therein either agree that the local
remedies rule shall not apply to claims based on alleged breaches of that treaty ; or confirm that
it shall apply. Yet the Chamber finds itself unable to accept that an important principle of
customary international law should be held to have been tacitly dispensed with, in the absence of
any words making clear an intention to do so.

North Sea Continental Shelf cases (Germany vs. Denmark and the Netherlands), 1969, para. 72,
ICJ:

Without attempting to enter into, still less pronounce upon any question of , jus cogens, it is well
understood that, in practice, rules of international law can, by agreement, be derogated frorn in
particular cases, or as between particular parties, but this is not normally the subject of any
express provision, as it is in Article 6 of the Geneva Convention.

What are the basic criteria for statehood?

Article 1, 1933 Montevideo Convention on the Rights and Duties of States:

The State as a person international law should possess the following qualifications: (a)
permanent population; (b) a defined territory; (c) government; (d) and capacity to enter into
relations with other states.

What is the doctrine of incorporation?

The doctrine of incorporation considers the general or customary norms of international law as
part of municipal law and are to be enforced as such, without regard as to whether they are
enacted as statutory or legislative rules or not.

What is the doctrine of transformation?


Rules of international law are not part of municipal law unless they are so transformed by means
of legislation.

May a State commit, and be held responsible for, a wrongful act?

Article 1, Draft Articles on Responsibility of States for Internationally Wrongful Acts:

Every internationally wrongful act of a State entails the international responsibility of that State.

Case Concerning the Factory at Chorzow, 1927, PCIJ:

It is a principle of international law that the breach of an engagement involves an obligation to


make reparation in an adequate form. Reparation therefore is the indispensable complement of a
failure to apply a convention and there is no necessity for this to be stated in the convention
itself.

When does an internationally wrongful act of State arise under International law?

Article 2 (ARSIWA) There is an internationally wrongful act of a State when conduct consisting
of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.