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Sorucrs of International Law

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17 views3 pages

Sorucrs of International Law

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criminallawlovers
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Sorucrs of International Law

A 38(1) 4 categories
a. Treties
b. Customs
c. General Principles
d. Subsidary Sources
Comparison A 38 of PCIJ and ICJ
Formal and Material Source of Law
Hierarchy of Sources of Int Law
Customs as Source of Int law:
a. State Practise and
b. Opinio Juris
i. North Sea Continental Shelf Case
ii. Asylum Case (1950) Peru vs Colambia
iii. Anglo Norwagian Fisheries Case
Opinio Juris and Legal Obligation
iv. SS Lotus Case
Findings: Establishing Juris, Criminal Juris, CIL (Prosecution by flag
state)
v. Military and Paramilitary activity in and around Nicaragua
(Principle of non-intervention, Use of force, self-defence, Relation
between custamary law and treaty law), Reparation)
vi. Nuclear weapon advisory opinion
(Juris, Discreationary refusal, Authority and Prohibition under law,
Comply with Int law, Self defense, Obligation to nuclear
disarnment )
Persistent rule Objector – new state as persistent objector
Regional and local Customs
Characteristics of local customs
i. Specificity, Proof requirement, Binding Nation
Asylum case – Havana Convention and Montovedio convention
Right of passage over Indian territory
General Principles of law
1. Chorzow Factory Case (Germany vs Poland)
Upper Silesia- special protection for property rights
Equity in Int law:
1. Diversion of Water from River Meuse case ( Netherland vs Belgium) 1863
treaty
Judicial Decision
i. Not a primar source Why they use it? Predictability and consistency
ii. Clarification- Application of the Genocide convention case
Cases : "A Cool Restless Bear Finds US Military Guard On Alert"
i. Anglo- Norwegian Fisheres Case- Straight base line
ii. Corfu Channal case- State responsibility, harmful activities
iii. Reparation for the injuries suffered by UN- Int personality
iv. Barcelona Traction case- Erga Omnes principle
v. Fisheries jurisdiction case - EEZ and coastline
vi. Case concerning the US Diplomat and consuler staff in Tehran – host
state protect …
vii. Military and Paramilitary activies in and around Nicaragua (State
soverigity, non use of force, non intervention, relationship between CIL
and Treaties)
viii. Case concerning Gabcikova Nagymares Project – Sustainable
development and environment
ix. Case concerning Oil Platforms – Principle of self defence - when use of
force in non action state -In response to alleged Iranian attacks on
U.S. vessels in the Persian Gulf. – Treaty of Amity
x. Arrest Warrant case- Diplomatic immunity and Universal Jurisdiction
xi.
Jus cogens
i. A 53- treaties conflicting void
ii. A 64- existing treaties in conflict with emerging jus cogens norms are
terminated
iii. State responsibility- cannot invoke circumstances precluding wrongful
acts
iv. Creation and recognition
v. Relationship with norms---- un obligation takes precedents over
international agreement but not jus cogens
vi. Torture---- convention against torture 1984, genocide (1948),,, slavery
and slave trade- 1926,,,,apartheid _ CEADAW
vii. Challenges: see notepad
viii. ERGA OMNES--- Barcelona traction

Differences in Tabular Form

Aspect Jus Cogens Erga Omnes

Definition Fundamental, non- Obligations owed to the


derogable norms of international community as a
international law. whole.

Nature Hierarchical and overrides Broader in scope and may include


conflicting norms or jus cogens norms.
treaties.

Derogatio No derogation is permitted. Violation affects the international


n community but is not necessarily
non-derogable.
Source Derived from peremptory Includes obligations derived from
norms recognized by the treaties, customary law, and jus
international community. cogens.

Examples Prohibition of genocide, Prevention of genocide, prohibition


torture, slavery, and of racial discrimination, and
aggression. respect for fundamental human
rights.

Legal Binding universally and States have a right to act against


Standing without exception. violations in the interest of the
international community.

Enforceme Overrides treaties or Any state can invoke responsibility


nt customs inconsistent with for its breach.
it.

Illustrative Example
1. Jus Cogens: A treaty permitting slavery would be void because it violates
the jus cogens norm prohibiting slavery.
2. Erga Omnes: If a state commits genocide, other states can take
collective or individual action (e.g., bring a case to the International Court
of Justice) because the obligation to prevent genocide is owed to the
international community.

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