L5: Treaties, customary law

What is Article 38(1) of the Statutes of the International Court of Justice?

is itself an exact copy of Article 38(1) of the Statutes of the Permanent Court of International Justice, is generally considered to be authoritative:

What does Article 38 say?

1.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

• a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

• b. international custom, as evidence of a general practice accepted as law;

• c. the general principles of law recognized by civilized nations;

• D. 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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Typology of article 38

• Article 38(2) refers to ex equo et bono [according to the right and good]

• Power for the Court (and some tribunals) to decide cases based on what they feel is right without reference to any rule of positive law

• A remanent of natural law in a largely positivist system, but very seldom used

Common law vs equity

• Common law: the law that exists

• Equity: the judge use their own discretion to make decision

Law vs justice

• Law = what is enforceable

• Justice = what is morally right

What does article 38(1a) say?

"international conventions, whether general or particular, establishing rules expressly recognized by the contesting states"

Treaty terminology

• treaties can be called all sorts of things, such as agreement, convention, exchange of notes, protocol, pact, etc etc

  • However not every document between 2 countries is a treaty

• The rules relating to treaties are part of customary international law, but also in the Vienna Convention on the Law of Treaties (116 parties), which is viewer as the authoritative restatement as well as positive law of treaties

  • Vienna Convention is technically both customary and positive law → flexibility of IL

Are treaties a source of law or source of obligation?

• Strictly speaking, some argue treaties are not sources of law as such, as much as they are a source of obligation under the law, binding on its parties (at least)

• Source of law:

  • Just creating new positive law

  • Treaties in nature of contracts - not new laws, but creating new obligations

• Why do treaties have to be obeyed? Pacta sunt servanda [agreements must be kept]

Under what circumstances can you lawfully breach a treaty?

• when another party does it first - you no longer are obliged to obey the obligations

  • Technical

Positive law vs customary law

• Positive law based on what states do and agree -> law that states proclaim, stronger sense

• Customary law: derived from the actions of the state (norms)

Treaties CAN be a source of international law

Some treaties codify a body of customary international law, and are generally accepted as authoritative statements of customary international law, even by non-signatories

Treaties cannot bind non-parties, but non-parties can choose to abide by the rules it lays out

Treaties

• Treaties are written, made between states, represented by people authorized to do so

• Treaties are distinguished from other international agreements in that they are legally binding-substance, not form, dictates whether something is a treaty or not

Typical features of treaties

• a preamble

  • What the treaty is for

• (Sometimes a long list of signatories names)

• Main body

• Signatures seals

  • Previously sealed with wax

  • No signature is enough → important ones can still be sealed

• Reservations

  • Not always possible or accepted

  • Protocols

treaty ratification

• Signature is (usually) not the final step-then parties have to ratify the treaties— allowing the principal to endorse what the agent has done (or not)

• Most treaties are not binding on states until they are ratified-but in the meantime the state is not meant to do anything that would defeat the purpose of the treaty

• Ratification is done according to domestic procedures-usually either the executive (e.g. UK and Commonwealth countries etc) or the legislature (e.g. United States)

• Ex. Bush refused tp ratify the rome statute - he treatened sanctions to other countries who agreed to give ICC a certain jurisdiction

Treaties: monism system

treaties (international law) do not need to be translated into municipal law-they have effect directly (e.g. Netherlands)

• In most countries now

• Treaty has democratic support from the 2 main parties -> thus it passes on automatically

Treaties: dualist system

domestic legislation is required to translate the treaty obligations into municipal law (e.g. UK)

• You want to make sure that gov has a say and legislative power has a say → purpose of domestic politics

• British gov in the name of the king has to ratify - treaty is not effective unless the parliament has passed a law on that treaty

When do treaties end?

• On its own terms (self-termination- expiry, disappearance of essential conditions, etc.)

• By withdrawal ("denunciation") - You don't leave the treaty - you denounce it

• In response to a serious breach by one party (sometimes)

What does article 38 (1b) say

"international custom, as evidence of a general practice accepted as law"

• Not every custom is law

  • For it to be law it has to be accepted as such

Custom to law: two elements needed

1. evidence of widespread and settled state practice;

2. opinion juris -- states adhere to the custom because they believe they have a legal duty to do so

Customary law: what do states do?

• State practice is ascertained not only through the actions of national executives, but also from domestic courts and legislatures, as well as public statements

• Opinio juris — a somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own!

• How many states following the custom is enough? 100 states? 120?

What is one way to create new customary law?

Persistent breach of an existing customary rule, in some circumstances, eventually becomes evidence of new rule

• Sometimes breaching is the only way to get a new customary law in place

Customary law: persistent objector

• States can prevent being bound by an emerging rule of customary international law by acting as a persistent objector-silence is not good enough

• You have to actively object (assert objection) otherwise it will start applying

  • Being silence means you are consenting to following the law 

  • You have to opt out of norms

Positivism vs customary law

• Customary assumes consent

• Positivism says that silence is silence NOT consent

  • Positivist say that customary law is problematic due to this

Customary law hierarchy

• Treaty is higher if you are part of treaty

• But more complicated when one country is part and the other isn’t

  • In these cases you revert to customary law → both parties are not part of treaty but both accept customary

    • Go to common denominator → where do they match

What does article 38 (1c) say?

"the general principles of law recognized by civilized nations"

Two views on what article 38 (1c) refers to

• Either it refers to principles which are to be found in most of all municipal law systems, but which do not exist as positive international law

  • Every state has a law of contracts

    • There is no positive IL of contracts

    • We borrow what is in the domestic law into IL to fill gaps 

      • Every country has the law so why not make it IL

OR

• View 1 + It also includes very basic legal principles such as pacta sunt servanda

  • Respecting your promise → promises have to be kept

  • Basic IL principles that every country has to accept

What does article 38 (1d) say?

"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."

What does article 59 say?

"The decision of the Court has no binding force except between the parties and in respect of that particular case."

• ICJ in practice ignores this —> a system of precedents

  • In theory there should not be a practice of precedents

What is a publicist?

Lawyer who does public law

Judicial decisions and writings of publicists: subsidiary means

• Secondary = subsidiary

• because what is contained in textbooks and judicial decisions are derived from the first three sources

  • Reflects what is in treaties, customary law and civilized nations (first 3 sources)

• 38 1d: Not a stand alone part of law —> it is an aid to the first 3

  • Cheat sheet —> can see textbooks to see what law is but it is not the law itself 

    • Can be used of evidence of law —> civilian approach

  • Ex. Court rulings in IL are not law but evidence of it

    • Judges do not create laws with their rulings

• In practice, the lines are somewhat blurred today because judges/lawyers in international law are very often also scholars of repute

  • In practice publicists and judges are often the same people

Judicial decisions and writings of publicists: precedents

• Unlike in common law systems, each case is only binding on the parties involved and are NOT binding precedents

  • This said, the ICJ has a tendency of citing itself as to the content of customary international law, even sometimes ignoring state practice

• Judicial decisions are not only those of international courts but also of municipal courts, which also serve an additional purpose of constituting state practice

Other sources of international law

None of the things listed are universally accepted as law unlike article 38

• Resolutions of the UNGA (arguably)

• Studies produced by the International Law Commission, even if not adopted

• UNSC: does not make law, but rather creates specific obligations, backed by a treaty (the UN Charter)

  • UN resolutions should not be viewed as law

    • Creates specific obligations

    • UN charter is law but the orders it creates themselves are NOT

      • Derived from law but in nature of obligations  

Is there a hierarchy of norms?

Sort of, but not completely

where are ius cogens/ peremptory norms in the hierarchy?

above everything else, but really very few of those exist:

• Wars of aggression

• Genocide/crimes against humanity/ Apartheid

• Slavery/torture/execution of juvenile offenders

• Piracy

Is peremptory norms higher than treaty law?

Yes

Higher than treaty law —> higher than everything

• Treaties that go against this are invalid

Treaty and customary law hierarchy

• A treaty prevails over customary law as between the parties to the treaty, but not over non-parties

Lex specialis derogat generali

• the special/specific rule prevails over general rule

  • Ex. A rule of chicken prevails over a rule of birds

Lex posterior derogat priori

• latter rule overrides the earlier rule

  • Newest rule is the applied one

Treaty lex specialis over customary why?

• Given that legislators/treaty-makers are assumed to know the customary international law, normally a treaty will be lex specialis over a customary rule

What if a customary rule emerges after a treaty? Is it lex specialis?

• If the customary rule is peremptory, it overrides the treaty

• If NOT, but if the parties to the treaty contributed to its emergence, the customary rule can be seen as modifying/ interpreting the treaty rule

• Otherwise? Who knows