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PIL: WEEK 3 - Coggle Diagram
PIL: WEEK 3
CUSTOM
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ICJ STATUTE
IN DECIDING A DISPUTE, THE ICJ SHALL APPLY:
- The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. INTERNATIONAL CONVENTIONS
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. INTERNATIONAL CUSTOM
international custom, as evidence of a general practice accepted as law;
c. GENERAL PRINCIPLES OF LAW
the general principles of law recognized by civilized nations;
d. JUDICIAL DECISIONS & TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS
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.
EX AEQUO ET BONO
- This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
(Art. 38 of ICJ Statute
NO BINDING FORCE EXCEPT BETWEEN PARTIES IN THAT PARTICULAR CASE
The decision of the Court has no binding force except between the parties and in respect of that particular case. (Art. 59 ICJ Statute)
VCLOT
TREATY IS VOID IF IT
- CONFLICTS WITH JUS COGENS
- AT TIME OF CONCLUSION
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. (Art. 53 of VCLOT)
PEREMPTORY NORM (JUS COGENS) DEFINED
For the purposes of the present Convention, 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 and which can be modified only by a subsequent norm of general international law having the same character.
(Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”))
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PROHIBITION OF TORTURE IS A JUS COGENS NORM, PART OF CUSTOMARY INT'L LAW
The prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).
That prohibition is grounded in a widespread international practice and on the opinio juris of States.
It appears in numerous international instruments of universal application and it has been introduced into the domestic law of almost all States
Acts of torture are regularly denounced within national and international fora.
However, the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applies only to facts having occurred after its entry into force for the State concerned
(Belgium)
INTERNAL LAW, INCLUDING JURISPRUDENCE OF INTERNAL LAW, CANNOT INVALIDATE CONSENT
PRE-EXISTING TREATIES VOID IF
- CONFLICTS WITH SUBSEQUENT
JUS COGENS
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Article 64 Emergence of a new peremptory norm of general international law (“jus cogens”)
EFFECT OF VOID PRE-EXISTING TREATYIn the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:
- PARTIES RELEASED FROM ANY OBLIGATION FURTHER TO PERFORM TREATY
(a) releases the parties from any obligation further to perform the treaty;
- DOES NOT AFFECT RIGHT, OBLIGATION, LEGAL SITUATION CREATED BEFORE TERMINATION BUT
a .MAINTAINED ONLY INSOFAR AS NOT IN CONFLICT WITH JUS COGENS
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.
(Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law)
DCICL
Draft conclusions on identification of customary international law, with commentaries
GENERAL PRACTICE =
STATE PRACTICE CONTRIBUTING TO FORMATION/EXPRESSION OF RULES OF CIL
Conclusion 4 Requirement of practice
(1)The requirement of a general practice, as a constituent element of customary international law, refers primarily to the practice of States that contributes to the formation, or expression, of rules of customary international law.
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EFFECT OF SUCH VOID CONCLUDED TREATY
- ELIMINATE AS MUCH CONSEQUENCES OF ACT PERFORMED IN RELIANCE ON PROVISION CONFLICTING WITH JUS COGENS
(1) In the case of a treaty which is void under article 53 the parties shall:
(a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and
- BRING MUTUAL RELATIONS TO CONFORM TO JUS COGENS
(b) bring their mutual relations into conformity with the peremptory norm of general international law.
(Art. 71 VCLOT)