Sources of Law a) b) c) d) international conventions international custom general principles of law 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

International Custom General principles of law recognized by civilized nations. Jus Cogens a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. Obligations ergaomnes 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 all 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 ergaomnes. Pactasuntservanda Every treaty is binding upon the parties to it and must be performed by them in good faith. ICJ Jurisdiction Key Principle: Court has jurisdiction on the basis of consent

Consensual 1. Compromis explicit consent; parties refer cases to the Court 2. Compromissory gives the Court jurisdiction over matters specifically provided for in treaties and conventions in force. Compulsory States make declaration accepting Court s Jurisdiction as compulsory. Advisory Jurisdiction function of the court open only to specified United Nations bodies and agencies. On receiving a request, the Court decided which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. The Court s advisory procedure is otherwise modeled on that for contentious proceedings, and the sources of applicable law are the same. In principle., the Court s advisory opinions are consultative in character and as such do not generally result in judgments that aim to resolve specific controversies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be specifically binding on particular agencies or states. Reservations means a unilateral statement however phrased or named made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State.

-reservations are not allows when the reservation is incompatible with the object and purpose of the treaty. TravauxPreparatoire preparatory work; the official records of the negotiation. -may be reffered when the text of the treaty is : 1) Leaves the meaning ambiguous or obscure; 2) Leads to a result which is manifestly absurd or unreasonable 4 doctrines of self-executing treaties 1. Intent-based Doctrine treaty is self executing when it is intended by the makers. 2. Justiciability Doctrine viewed a treaty s self executing or non-self executing nature as a characteristic that exists independently of any intent to require legislation. They have perceived this characteristic as a part of the treaty s essence, to be discerned by the court using whatever guidance it finds useful. Although these courts continue to consider the intent of the parties, they do not limit their search to ascertaining such intent. 3. Constitutionality Doctrine treaty is non self executing because of treaty makers constitutional disability; if what it purports to accomplish is within the exclusive law making powers of Congress. 4. Private right of action treaty did not create private right of action therefore non self executing Theories of recognition Recognition by other states is merely declaratory of statehood, and other states have the duty to recognize it as a state. Recognition by other states is constitutive of statehood.

UNGA Resolutions: Decolinization all people have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and culatural development. Permanent Sovereignty over Natural Resources must be exercised in the interest of their national development and of the well being of the people Non-use of force Non-intervention Self-determination Sovereign Equality State Succession Extent Universal succession

Clean slate not automatically bound by treaties Partial succession Which Obligations Treaties State property and debt Membership in international organizations State Responsibility Article 10.1 Conduct of an insurrectional or other movement The conduct of an insurrectional movement which become the new Government of a State shall be considered an act of that State under international law. Codification Movement Goals -Remove the uncertainties of customary international law by filling existing gaps in the law - Give precision to abstract general principles whose practical application is not settled. -the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine Progressive Development the preparation of draft conventions on subject which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States ; as conscious effort towards the creation of new rules of international law, whether by means of the regulation of a new topic or by means of the comprehensive revision of existing rules State Responsibility Primary Rules substantive rule of diplomatic protection Secondary Rules concerned with matrix of rules of [rules to determine] whether there has been a breach by a State and what were its consequences , the underlying structures of inter-action Elements of an internationally wrongful act of a State There is an internationall 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 Principles of Attribution By organs of the State By persons empowered to exercise elements of governmental authority By persons or groups under the direction or control by the State By persons exercising governmental power in default of State authorities By successful insurrectional movements Through conduct acknowledged and adopted by the State as its own

Counter-measures When a State is allowed non-performance of its obligations to another State Objects and limits: Only agains the responsible State (not against a third State) In order to induce that State to comply with obligations Proportionality (must be commensurate to the injury suffered and the gravity of the wrongful act)

Obligations that remain despite Counter-measures to refrain from the threat or use of force to protect fundamental human rights Humanitarian rules prohibiting reprisals Other jus cogens obligations Dispute settlement procedure under other instruments Diplomatic and consular immunities

Just war after treaty of Westphalia Unrestricted sovereign right of war War as a means of settling disputes; just like a private duel, not the concern of the community of states

Economic, Cultural and Social Rights Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

International Human rights applies at all times (peace or war) except for Derogable Rights under a state of emergency Administered by UN and treaty bodies

Obligations are imposed on States alone

International Humanitarian Law applies in conditions of armed conflict non-derogable obligations administerd by the International Committee of the Red Cross applies to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. In the case of armed conflict not of an international character occurring in the territory, minimum requirements Obligations are imposed on Parties to the conflict even to Non State Actors

Fundamental Obligations 1. Principle of Distinction: between civilians and combatants 2. Principle of Proportionality: between human costs and military advantage 3. Martens Clause: applicable despite absence of specific treaty obligations Torture Convention No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mas s violations of human rights.

Refugee persons: Owing to well founded fear of being persecuted for reasons of: 1) race; 2) religion; 3) nationality; 4) membership of a particular social group or political opinion Is outside the country of his nationality o Is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or o Not having a nationality and being outside the country of is former habitual residence as a result of such events, is unable or, owing to such fear, is un willing to return to it.

How refugee status is lost change of status vis--vis country of origin o re-availed himself of the protection of the country of his nationality o re-acquired his nationality (if he had lost his nationality)

o re-established himself in the country of origin change of status vis--vis host country o acquired a new nationality o enjoys the protection of the country of his new nationality when the circumstance giving rise to genuine fear have ceased to exist

Grounds for exclusion Not a refugee he has committed a crime against peace, a war crime, or a crime against humanity ha has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee he has been guilty of acts contrary to the purpose and principle of the United Nations.

May be Expelled national security or public order after due process determination of compelling national security reasons after a reasonable period to seek admission into another country

Refugee rights Personal status: law of country of domicile or residence Right to own property Access to courts Right to engage in wage-earning employment, self-employment and practice of liberal professions Welfare benefits Freedom of movement: Subject to any regulations applicable to aliens generally in the same circumstances Identity papers and Travel Documents Non-refoulement

Utipossidetis - preservation of the demarcation under the colonial regimes corresponding to each of the colonial regimes corresponding to each of the colonial entities that was constituted as a State