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Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

Q: What is Persistent and subsequent objection?

The persistent objector rule allows a State to exempt itself from the application of a new customary rule if it can be demonstrated that it had objected persistently and explicitly, during the period in which that norm was emerging. Subsequent objector , conversely, has adhered to an original rule, but objects to proposed changes to that rule. Persistent and subsequent objection are rare in practice.

12 important questions on Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

If a conflict emerges between applicable (toepasselijk) legal rules, it can be resolved on the basic of guiding principles such as?

Specific rule prevail over rules of general application (lex specialis)
More recent law prevails over an inconsistent earlier law (lex posterior derogat priori).

What is customary IL?

Customary IL law entails (brengt met zich mee) the recognition that the practices of States on the International plane can create new legal rules. In Organized societies rules embedded in social practices come te be regarded as a form of customary law a recurring interaction among individuals and groups that is accompanied by the acknowledgement that such a mode of interaction produces certain expectations of conduct that ought to be satisfied. Social practices of individual actors which crystallize often over a long periode of time.

What are the two elements of custom?

The reference in art 38 international custom as evidence of a general practice accepted as law highlights two elements which contribute tot the creation of customary law:

Material element: actual practice of States in relations (called usus of usages)
Subjective element: belief of States that that behaviour is law (opinio juris sive necessitatis an opinion as to law or necessity.

Elements of custom: what intensity is required? What is the courts point of view?

In North Sea Continental Shelf (1969) the Court turned to the question of time, or duration. required for a new rule to crystallize: 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 was 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 (para 74).

What are he requirements for a 'general practice'?

Practice is a dynamic phenomenon: the actions of one actor may be accepted, tolerated, or rejected by other actors, which may adopt a similar course of action When examining State practice in relation to jurisdictional immunities, the ICJ stated that:
"State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted States dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States."

The particular relevance of certain States in the formation of a customary rule has been recognized by the ICJ in North Sea Continental Shelf, where the Court noted?

That ‘State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform’. A classic example of a 'specially affected State would be that the practice of States with actual coastlines, and not that of land-locked States, would be relevant in the delimitation of maritime boundaries.

What does the relativity of custom means?

International law allows for three situations where the application of a customary legal rule is not universal. These are

persistent objection in relation to a new rule
subsequent objection, in relation to a change in an existing rule; and the possibility of
regional, bilateral, or otherwise localized forms of custom.

Mean the rule is inopposable (ineffective) in respect of a State that has availed itself of the exception.

What is Persistent and subsequent objection?

The persistent objector rule allows a State to exempt itself from the application of a new customary rule if it can be demonstrated that it had objected persistently and explicitly, during the period in which that norm was emerging.
Subsequent objector, conversely, has adhered to an original rule, but objects to proposed changes to that rule.

Persistent and subsequent objection are rare in practice.

Custom has a number of disadvantages in relation to treaties. Which?

Given that it is unwritten, shaped through the practice of all States, and there are difficulties in ascertaining whether a new rule has emerged.

In the North Sea Continental the Court had to consider?

The Court had to consider whether then West Germany was bound by certain provisions of the 1958 Convention on the Continental Shelf, which it had signed but not ratified, and thus was not bound. The Court accepted that a provision of a treaty can lead to the creation of new customary rules, if the provision was of a fundamentally norm-creating character’ and thus capable of forming the basis of an emergent or pre-existing customary law.

What happens if a treaty comes into being which covers the same ground as a customary rule?

The ICJ in the merits phase of Nicaragua, rejected the idea that existing custom would be superseded (vervangen/afschaffen) or absorbed into the treaty: even if a treaty norm [in that case, the UN Charter] and a customary norm relevant to the present dispute 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 (afzetten) the customary norm as to its applicability as distinct from the treaty norm.

What are the subsidiary sources of international law?

Judicial decisions
Writings of the most eminent publicists

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RB1812202133 International Law

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Topics that are related to Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

Nature and Sources of International Law - Sources of international law

Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

12 important questions on Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

If a conflict emerges between applicable (toepasselijk) legal rules, it can be resolved on the basic of guiding principles such as?

What is customary IL?

What are the two elements of custom?

Elements of custom: what intensity is required? What is the courts point of view?

What are he requirements for a 'general practice'?

The particular relevance of certain States in the formation of a customary rule has been recognized by the ICJ in North Sea Continental Shelf, where the Court noted?

What does the relativity of custom means?

What is Persistent and subsequent objection?

Custom has a number of disadvantages in relation to treaties. Which?

In the North Sea Continental the Court had to consider?

What happens if a treaty comes into being which covers the same ground as a customary rule?

What are the subsidiary sources of international law?

Topics that are related to Nature and Sources of International Law - Sources of international law - IL Gleider H. Article 38 of the Statue of the International Court of Justice

Nature and Sources of International Law - Sources of international law

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