Making and Changing of International law

What is the concept of a legal source?

A set of acts and facts deemed appropriate to create rights and obligations

What instrument sets out the sources of international law?

Article. 38 ICJ Statute

What does Article 38 the ICJ Statute list the sources of international law to be?

1. International conventions

2. international custom

3. The general principles of law

4. (Subidiary means) Judicial decisions and literature

Can General Assembly resolutions be considered as sources of law?

They cannot be considered as sources of law in any statutory way. However, General Assembly resolutions may bear significant persuasive relevance in the identification of customary international law

What does Article 13 of the UN encourage?

Under this article, the general assembly is vested with the aim of encouraging the progressive development of international law and its codification. This aim has been pursued through the establishment of the International Law Commission.

The General Assembly plays an important role in boosting international law-making, however this is not the same as a domestic legislator for two reasons:

1. The GA is not mandated by the UN Charter to pass statutory law

2. The function the GA fulfils is one of facilitating customary law and treaty making, both of which are firmly in the hands of states

Up until the 20th Century, what was the prevailing source of international law?

Custom

What convention governs treaties?

Vienna Convention on the Law of Treaties (VCLT) 1969

How does Article 2 of the VCLT define a treaty?

‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

Qatar v Bahrain (1994) ICJ Judgement

[The minutes of the meeting] enumerate the commitment to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement

What are the steps for the formation of a treaty (solemn form)?

1. Negotiations

2. Adoption

3. Signature

4. Ratification

5. Exchange of ratifications

6. Registration

Definitive signature

In most cases, the signature alone does not create binding legal obligations, however in some treaties the signature itself can constitute consent to be bound

What does article 87(8) of the Italian Constitution state:

The President of the Republic ratifies International Treaties, subject, when necessary, to authorization by the Houses of Parliament.

Application ratione personae (Art. 34 VCLT)

The treaty creates legal relations exclusively between the states parties (pacta tertiis nec nocent neque prosunt).

Application ratione loci (Art. 29 VCLT):

The Treaty binds each contracting party with respect to its entire territory,” including air and sea space

Application ratione temporis (Art. 28 VCLT) non retroactivity

The provisions of a treaty do not bind a party with respect to an act or fact occurring prior to the date of entry into force of the treaty

A treaty is invalid (or void ) if:

at the time the treaty was negotiated or at the time the consent to bind was manifested, certain anomalies (or flaws) have occurred that render that apparent treaty incapable of producing any legal effect.

An invalidity may be relative:

remediable; can be enforced only by the state whose consent is vitiated (violation of domestic rule on competence to enter into, mistake, fraud, corruption of the entering into body)

An invalidity can be absolute:

irremediable; can be enforced by any party to the treaty (conflict with norm of jus cogens).

What are the causes of invalidity?

1. Violation of internal law

2. Error or Fraud

3. Corruption or coercion

4. Coercion of the State or violation of jus cogens

Article 27 (VCLT)

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

What expception does Article 46 (VCLT) give to Article 27

If the treaty manifestly violates a rule of fundamental importance to a state, it may be declared void. However it must be objectively evident to any state party to the Treaty

If an individual exceeds her authority in signing a treaty (i.e, she does not have the consent of the government to sign such restrictions), would the treaty be considered void?

Article 47 deals with this.

If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent.

What case concerns the violation of internal law as a basis for treaty invalidity?

Guinea-Bissau maritime boundary with Senegal

What did the Court find in the dispute between Guinea-Bissau and Senegal?

The Court noted that: To examine whether a treaty has been concluded in accordance with the domestic law of a State, one must take into account the law in force in the country, that is to say the law as it is actually interpreted and applied by the organs of the State, including its judicial and administrative organs

Article 48 (VCLT)

Error

What case provides an example of the invocation of error to dispute the validity of a treaty?

Case of the Temple of Preah Vinhear (Cambodia c. Thailand) (1962)

What was found in the Case of the Temple of Preah Vinhear (Cambodia c. Thailand) (1962)?

The ICJ held that the vice of error could not be invoked, as it was inexcusable. Given the joint composition of the French-Siamese Commission, Thailand could not be unaware of Cambodia’s intention concerning the boundary – and intention with which Thailand agreed.

Article 49 (VCLT)

Fraud

An example of fraud:

The Uccialli treaty between Italy and Ethiopia of 1889

What was the fraud between Italy and Ethiopia?

The Italian version of the treaty stated that Ethiopia “should” conduct its foreign policy through Italy, the Amharic version simply said Ethiopia “could” use Italy for its foreign rapports.

An example of an agreement declared void because of corruption / coercion?

Munich Pact

Article concerning coercion of a State by the threat of use of force?

Article 52

Article 53 (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law

How does article 53 define a peremptory norm of general international law?

A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted

An example of a jus cogens violation?

Italy Libya - Migration control

An internationla treaty remains in force until…

an event occurs which, according to international law, is capable of producing its extinction

How can a treaty be terminated:

• Termination by consent of all parties

• Withdrawal

• Material breach

• Supervening impossibility

• Fundamental change of circumstances

Notice period required for a party to anounce its intention to denounce or withdraw from a treaty?

No less than 12 months

If there is no provision regarding the termination of a treaty or withdrawal, can parties withdraw?

No - unless:

a. it is established that the parties intended to admit the possibility of denunciation or withdrawal

b. a righ of denunciation or withdrawal may be implied by the nature of the treaty

What are the requirement for a materical breach by one party?

The violation must be “substantial”: either rejection of the treaty not authorized by the Convention or violation of a provision essential to the realization of the object and purpose of the treaty.

What supervening impossibility would result in ground for termination?

If the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.

What supervening impossibility would result in ground for suspension?

If the impossibility was temporary

Fundamental change of circumstances may not be invoked as a cause of termination unless:

• the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

• the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

Fundamental change of circumstances may not be invoked as a cause of termination if:

• the treaty establishes a boundary;

• the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

What does the Hungary/Slovakia case demonstrate about the fundamental change of circumstances provision?

Demonstrates the restrictive rationale

Operates ex tunc

The treaty is devoid of legal effects from its inception

Operates ex nunc

The legal effects of the treaty cease the moment the cause of termination comes into being

What may affect a parties consent to be bound by an agreement?

Reservations

Why would a state make a reservation?

Reservations to treaties allow states to tailor their commitments by excluding or modifying certain provisions

What is the purpose of the reservation?

The purpose of the reservation is to facilitate the widest participation in multilateral treaties by respecting domestic limitations

The 2011 ILC Guide to Practice on Reservations to Treaties sets out 4 instances in which a statement may be considered a reservation:

1. Statements purporting to limit the obligations of their author

2. Statements purporting to discharge an obligation by equivalent means

3. Reservations relating to the territorial application of the treaty

4. Reservations formulated when extending the territorial application of a treaty

When is it possible to make reservations?

Reservations are always allowed except when:

• The treaty expressly excludes them

• imcompatible with the purpose and object of the treaty

What are the two elements of customary rules?

Practice and opinio juris

Opinio juris meaning:

Conviction of the mandatory nature of the behaviour

Practice meaning:

Constant and uniform behaviour from the generality of States

General practise without opinio juris is considered:

International courtesy

Opinio juris not supported by general practise:

Aspiration

In the case of Nicaragua, what did the court say about consistency with the rules under customary law?

‘The Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as a recognition of a new rule.’

What did Michael Wood note about precedent?

“Decisions of courts and tribunals on questions of international law [...] may offer valuable guidance for determining the existence or otherwise of rules of customary international law”

“[the Court] seems very reluctant to depart from its previous Decisions’

What did Cameroon v Nigeria establish about precedent?

In international law, prior ICJ judgments are not formally binding under Article 59, but the Court still treats its earlier reasoning as highly persuasive and generally follows it (jurisprudence constante)

How does Sir Hersh Lauterpacht define general principles of law?

T]hose principles of law, private and public, which contemplation of the legal experience of civilized nations leads one to regard as obvious maxims of jurisprudence of a general and fundamental character

What are the features of general principles of law?

These must be:

• applied by a pluarality of legal orders coming from different juridical civilisations

• Felt to be mandatory from the point of view of international law

Functions of General Principles

1. Ensure the completeness of the system when international law does not yet provide clear rules of conduct

2. Interpretive support function for rules of treaty law

3. Corrective function of jus cogens

Equity infra legem

Two rules that are equally applicable and you must find a compromise

Equity praeter legem

Gap in the legal system and you decide based on analogy or a principle of justice

Equity contra legem

equity against the legal system

Lex specialis derogat generali

The more specific rule prevails over the more general rule

Lex posterior derogat priori

The later rule prevails over the earlier rule.

What did Denmark and the Netherlands argue in the North Sea Continental Shelf case?

Argued that article 6 of the Geneva Convention corresponded to a customary rule and as such its content would also bind states who were not parties to the convention (in this case Germany)

When is a rule contained in a convention binding on a third state?

1. The rule was declaratory of a pre-existent customary rule

2. When the conventional rule has performed a function of crystalling a custom through the elaboration process

3. when the conventional rule has acted in a promotive and generative function in the formation of a customary rule