Similarities btw PIL and PHL

individuals/states
community
social order
creation
interpretation
enforcement
replacement

Why are rules binding?

What are the theories of law?

Custom
nicaragua v icj
- absolutely rigorous conformity

Opinio juris
- ojsn
a confiction felt by states that a certain form of conduct is required by int'l law
- motivated by a sense of legal duty, and not simply by courtesy or comity
- can be proved by
> pointing to an express acknowledgemnt of the obligation by the states
concerned, or
> showing that failure to act in the manner required by the alleged rule has
been condemned as illegal by other states whose interests were affected

way of which rules are created

1st formal source: international custom - consent is implied lang thru constant
performance driven by legal obligation/duty
2nd way: international agreements/conventions

ALI 102
a treaty rule may create a customary rule
treaty and customary rule have seperate existence

issue of separate existence of the customary rule

- US argument on jurisdiction - reservations on the jurisdiction of the court

US act is against treaty and customary law

even tho there is a treaty rule, you can still apply the customary law
- difference in operation: binding power
> treaty - parties who sign are bound
> customary - all
: operation - definitions provided, parties subj, grounds for excusing
non-observance, mechanism for enforcement - treaty will have one, custom will not
> T - use of force
> C - self defence

International agreements
- establishing rules expressly recognized by contesting states
- creates law for the states parties thereto
- may lead to the creation of customary int'l law when such agreements are intended
for adherence by states generally and are in fact widely accepted

1. btw states
1.1. oral
1.2. written (treaty)
a. treaty
 b. executive agreement
vienna convention on the law of treaties btw states

2. btw states and international orgs

vienna convention on the law of treaties and etc

3. btw states and other persons

GENERAL PRINCIPLES OF LAW (last resort/supplementary rules of int'l law)

examples:
good faith
unjust enrichment
responsibility for wrongful act
duty to make reparations
estoppel

Hierarchy of rules of int'l law

a. primary: custom and treaty
supplementary: GPL

b. GR: gustom and treaty are equal

exc: customary rules that are jus cogens
"a peremptory norm of general international law is a norm accepted and recognized
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 int'l
law having the same character"
exc: treaty (or custom) is more specific
exc: treaty (or custom) is more recent

38.1 does not suggest hierarchy btw treaty/custom

c. in case of conflict:
1. type
2. terms
3. timing

d. custom and treaty may co-exist

nicaragua v US

what processes to produce binding international law?

treaty-making process
custom-m p
gpl-m p

material v formal source

formal source: process/manner of making (creation)

material source (existence and content) - imp to prove existence of the process to
arrive to its existence and the operation via the content/copy of the treaty

how would you prove existence of customary rule?

- look at the state practices, records of what the state has actually done - prove
the two elements: state practice and opinio juris (long way of doing it)
- (short way) 38.1(d) - subsidiary means via judicial decisions and the teachings
of the most highly qualified publicists of various nations
> all judicial decisions - 38.1 does not distinguish