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course 1: sources and structure of international law
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This is an elaboration of assignment 1/ course group 1 of the subject of international law. It is about the sources and structure of international law.
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Written assignment – week 1: The structure and sources of
international law
Question 1
Customary International law, often referred to as unwritten law, comes from
longstanding practices and behaviours that are accepted as law within the
international community. Customary law serves as a primary source of
international law and is therefore binding. In this case, the Republic of Verde
asserts that the REDUX treaty is customary law, implying it is considered binding
on all states within the international community.
Unwritten + binding on all states -> treaties only binding on the parties
Our first step involves evaluating whether the REDUX treaty can be qualified as a
foundation of customary law, a process contingent upon the fulfillment of both
objective and subjective criteria (as delineated in Conclusion 3) 1. First, we
address the objective aspect, which hinges on the widespread utilization of the
treaty by States. This utilization must demonstrate consistency and notably, must
occur openly in the public sphere (as expounded in conclusion 4) 2. Such general
actions can be physical enactments and verbal affirmations (as elucidated in
Conclusion 5)3. Moreover this general practice of a State needs to be recognized
and accepted as law, this is a concept commonly known as opinion juris.
2 conditions
- State practice: can be global and physical
o Consistent: nicaragua case -> paragraph 186
o General: north sea case
o uniform
- Opinion juris
In this situation: no state practice, because no general practice -> only 1/3
ratified the treaty
No exact number of how many states need to ratify the treaty to speak of state
practice -> it depends on the matter of the new rule
By applying this objective standard to the situation, We will first assess whether
there exists a state practice, involving states’ cessation if fossil fuel use and
production to achieve a complete reduction to zero usage, as stipulated by the
treaty. This constitutes a concrete state action according to Conclusion 6,
paragraph 2. Consequently, this facet of the objective criterion will be rigorously
scrutinized to determine its fulfillment.
1
ILC Draft Conclusions on the Identification of Customary International Law, Conclusion 3.
2
ILC Draft Conclusions on the Identification of Customary International Law, conclusion 4.
3
ILC Draft Conclusions on the Identification of Customary International Law, conclusion 5.
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