IL2_Sources and Codification

According to the provided material, every exam answer for Unit 2 must begin with a reference to which specific statutory provision?

Article 38(1) of the Statute of the International Court of Justice.

In international legal literature, what is meant by the 'material source' of a rule?

The historical or material origin of a rule, such as the events or ideas from which it emerged.

Which type of source refers to the formal process or procedure by which an international rule acquires legal validity?

Formal source.

How did Oppenheim define a 'source of law' in international law?

The method or procedure by which international law is created and becomes legally binding upon states.

Article 38(1) of the ICJ Statute lists judicial decisions and teachings of publicists as _____ means for determining rules of law.

Subsidiary

What was the only textual change made to Article 38 when it transitioned from the PCIJ Statute to the ICJ Statute in 1945?

The addition of the opening clause: 'whose function is to decide in accordance with international law such disputes as are submitted to it'.

Why is Article 38 of the ICJ Statute considered non-exhaustive regarding the sources of international law?

It was drafted in 1920 and does not include modern developments like UN resolutions, soft law, or unilateral acts.

True or False: Article 38(1) of the ICJ Statute explicitly establishes a strict hierarchical ranking between treaties, custom, and general principles.

False (The letters (a)-(d) are enumerative rather than hierarchical).

Under Article 38(2) of the ICJ Statute, what is the prerequisite for the Court to decide a case 'ex aequo et bono'?

The parties to the dispute must specifically agree to it.

What does the Latin phrase 'ex aequo et bono' mean in the context of international adjudication?

According to what is equitable and good (fairness and justice rather than strict law).

Which convention provides the authoritative definition of a 'treaty'?

The Vienna Convention on the Law of Treaties (VCLT) 1969.

According to VCLT Article 2(1)(a), a treaty must be concluded between _____ to fall under its scope.

States

In the case of 'Qatar v. Bahrain' (1994), what did the ICJ determine regarding the designation of an international agreement?

The name of the instrument does not matter; what matters is the substance and the intent to create legal effects.

What is the primary difference between 'law-making treaties' and 'contract treaties'?

Law-making treaties lay down general rules for many states, whereas contract treaties create rights and obligations only between specific parties.

What is the meaning of the rule 'pacta tertiis nec nocent nec prosunt' codified in VCLT Article 34?

A treaty does not create either obligations or rights for a third State without its consent.

Under what condition can a treaty provision bind a non-party state according to the 'North Sea Continental Shelf' cases?

When the treaty provision has 'passed over' into customary international law through general practice and opinio juris.

What are the two essential elements required to establish a rule of customary international law?

State practice (usus) and opinio juris sive necessitatis.

In the context of customary law, what is 'opinio juris'?

The subjective belief by a state that its practice is rendered obligatory by the existence of a rule of law.

Which landmark ICJ case definitively articulated the two-element test for custom in 1969?

North Sea Continental Shelf Cases.

According to the ICJ in 'Nicaragua v. USA', how should occasional inconsistent state practice be treated in relation to a customary rule?

As a breach of the rule rather than an affirmation of a new rule, provided the deviations are generally treated as violations.

Does the formation of customary international law require practice to have existed for a long period of time ('immemorial usage')?

No, a short period of time is not necessarily a bar if the practice is extensive and virtually uniform.

In which case did the PCIJ reject a customary rule because the states' abstention from acting was not shown to be based on a sense of legal obligation?

The S.S. Lotus Case (1927).

What is the 'persistent objector doctrine'?

A state that persistently and unambiguously objects to a developing customary rule from its emergence is not bound by it once it crystallizes.

The 'Asylum Case' (1950) is the leading authority for the existence of which type of custom?

Regional or local custom.

Which case confirmed that a local custom can exist between just two states (bilateral custom)?

Right of Passage Case (Portugal v. India, 1960).

Why was the category 'general principles of law recognized by civilized nations' included in Article 38(1)(c)?

To avoid 'non liquet'—situations where a court cannot decide a case because no governing treaty or custom exists.

What is the dominant modern interpretation of 'general principles of law'?

Principles common to the major domestic legal systems of the world that are transposable to international law.

The principle that 'agreements must be kept' is known by the Latin term _____.

Pacta sunt servanda

Which case established the general principle that every breach of an engagement involves an obligation to make reparation?

Chorzów Factory Case (1928).

In the 'Temple of Preah Vihear' case (1962), the ICJ applied which general principle to prevent Thailand from challenging a border map?

Estoppel (or preclusion).

What does Article 59 of the ICJ Statute state regarding the binding force of the Court's decisions?

The decision has no binding force except between the parties and in respect of that particular case.

True or False: The ICJ follows a formal common-law doctrine of 'stare decisis' (binding precedent).

False (Article 59 rejects it, though the Court follows prior decisions for consistency).

Under the US Supreme Court case 'Paquete Habana' (1900), what is the role of works by jurists/commentators in international law?

They are trustworthy evidence of what the law really is, rather than sources of what it ought to be.

According to the UN Charter, are resolutions of the General Assembly generally legally binding on member states?

No, they are generally recommendations under Article 10 of the Charter.

Under which Article of the UN Charter are decisions of the Security Council binding on all member states?

Article 25.

Which ICJ Advisory Opinion noted that General Assembly resolutions can provide important evidence for establishing 'opinio juris'?

Legality of the Threat or Use of Nuclear Weapons (1996).

What is 'soft law' in the context of international legal sources?

Non-binding instruments (like declarations or guidelines) that shape state conduct and may evolve into binding law.

Define 'jus cogens' according to VCLT Article 53.

A peremptory norm of general international law from which no derogation is permitted.

In the 'Nuclear Tests Cases' (1974), the ICJ held that France was bound by what type of act?

A public unilateral declaration expressing an intention to be bound.

What is the difference between 'codification' and 'progressive development' as defined by the ILC Statute?

Codification is the precise formulation of existing rules; progressive development is the preparation of rules for unregulated subjects.

Which subsidiary organ of the UN General Assembly was established in 1947 to promote the codification of international law?

The International Law Commission (ILC).

How many members serve on the International Law Commission, and in what capacity do they serve?

34 members, serving in their individual capacity (not as state representatives).

Which ILC-produced document is widely treated as an authoritative statement of custom despite not being a formal treaty?

Articles on State Responsibility (2001).

Explain the hierarchy rule 'Lex posterior derogat legi priori'.

A later rule overrides an earlier rule of the same status between the same parties.

What is the significance of Article 103 of the UN Charter in the event of a conflict between treaties?

Obligations under the UN Charter prevail over obligations under any other international agreement.

Which case confirmed that a commercial contract between a state and a private company is NOT a treaty?

Anglo-Iranian Oil Company Case (UK v. Iran, 1952).

The 'Nicaragua v. USA' case (1986) established that a rule can have a 'dual life'. What does this mean?

A rule can exist simultaneously as both a treaty provision and a rule of customary international law.

What is 'equity infra legem'?

Equity within the law, used to interpret and apply existing rules (e.g., in maritime delimitation).

The principle that 'no one may be a judge in their own cause' is known by the Latin phrase _____.

Nemo judex in causa sua

In the 'Asylum Case', why did Colombia's claim of regional custom fail?

The practice was too uncertain, contradictory, and influenced by political expediency to prove a settled rule.

According to VCLT Article 53, a treaty is _____ if it conflicts with a 'jus cogens' norm at the time of its conclusion.

void

Which general principle prevents a state from going back on a representation it previously made to the detriment of another state?

Estoppel

What is the role of 'specially affected states' in the formation of customary international law?

Their practice carries particular weight in determining if a custom has crystallized (e.g., maritime powers for sea law).

According to the ILC's 2022 work, what are the two categories of general principles of law?

(1) Those derived from national legal systems and (2) those formed within the international legal system.

What is the definition of a 'publicist' in the context of Article 38(1)(d)?

A highly qualified writer or scholar of international law.

The rule 'Lex specialis derogat legi generali' means that a _____ rule overrides a general rule on the same subject.

specific

Under VCLT Article 36, can a treaty create rights for a third state without that state's signature?

Yes, provided the third state consents (which may be presumed unless indicated otherwise).

Which case is cited as authority for the 'persistent objector' doctrine regarding the 10-mile bay-closing rule?

Anglo-Norwegian Fisheries Case (1951).

Why is 'pacta sunt servanda' considered the 'Grundnorm' of international law by jurists like Anzilotti?

It is the foundational principle that makes all treaty-based obligations legally binding.

What determines if a UN Security Council resolution is legally binding on all members?

If it is adopted under Chapter VII (regarding threats to peace, breaches of peace, or acts of aggression).

In custom formation, what is the term for the objective element consisting of actual state conduct?

State practice (usus).

What is the legal status of an oral international agreement under customary law vs. the VCLT?

They can exist and be binding at customary law but are not 'treaties' under the written-form definition of the VCLT.

According to the text, what is the purpose of Article 38(1)(d) describing judicial decisions as 'subsidiary'?

To signal their secondary status as tools to identify law rather than as independent sources that create law.

Which specific Article of the UN Charter directs the General Assembly to encourage the 'progressive development of international law'?

Article 13(1)(a).

Which historical conference failed to codify the breadth of the territorial sea in 1930?

The League of Nations Codification Conference (The Hague).

If a state becomes independent today, is it bound by existing customary international law?

Yes, new states are generally bound by existing custom and cannot object to rules that crystallized before their birth.

What general principle is defined as 'a matter once finally decided cannot be re-litigated'?

Res judicata

Under the IRAC method for problem questions, what does each letter stand for?

Issue, Rule, Application, Conclusion.

What is the hierarchical status of a treaty that conflicts with 'jus cogens'?

'Jus cogens' is superior; the treaty is void ab initio under VCLT Article 53.