Lesson 3: Sources of International Law 3️⃣

ICJ looks to:

1) International treaties and conventions.

2) International custom.

3) General principles of law.

In interpreting these, the ICJ may also look to:

4) Judicial decisions.

5) Teachings of publicists.

Authorized Sources: Article 38(1) of the Statute of the International Court of Justice

(ICJ) lists the sources which that court is permitted to use.

Treaties

are agreements between two or more states or other persons with rights and powers equivalent to states.

Conventions

are agreements sponsored by international organizations.

b. Reasons for binding effect:

1) Shared sense of commitment.

2) Because one country fears that if it does not respect its promises, other countries will not respect their promises.

c. Use of treaties: to finalize agreements between:

1) States and states.

2) States and international organizations.

3) International organizations and international organizations.

d. Rules governing treaties:

1) Traditionally customary.

2) Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).

1) Traditionally customary.

2) Now codified in the __________________

Adoption

agreement by the negotiating states as to the final wording of the treaty text.

Consent

agreement by a state to be bound by a treaty.

a. Signature of an authorized negotiator.

b. Ratification (formal adoption) by a state's head of government.

c. Sometimes this must be done in consultation with the state's legislature.

d. Accession by a state that did not participate in a treaty's negotiation and drafting.

Entry Into Force

General rule: Treaties only enter into force when all of the states that participated in their negotiation have consented to be bound.

1) The treaty may provide that it will come into force when a specified number of states consent to be bound.

2) Some treaties contain provisions making the parties provisionally bound pending ratification.

Reservations

Defined: "a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state..

• destroys the 'unanimity' to the treaty, and as such definitely affects its 'integrity'. 

Effect of making a reservation:

1. To a Bilateral Treaty

2. To a Multilateral Treaty

1) ___________: a proposal to renegotiate the whole treaty.

2) ____________ a reservation will not defeat the treaty so long as it is "compatible with the object and purpose" of the treaty.

• The treaty is in effect only between the reserving state and other states that acknowledge or accept the reservation.

Application

General rule: "a treaty is binding upon each party in respect of its entire territory."

1) The treaty or a party (at the time it consents to the treaty) may provide otherwise.

Interpretation

a. Traditional approaches used to interpret treaties:

1) Founding fathers approach: look at the "original intent of the parties."

2) Teleological approach: look at the "aims and objectives" of the treaty.

3) Textual approach: look at the "clear and ordinary meaning of the words."

1) Founding fathers approach

2) Teleological approach

3) Textual approach

1) __________: look at the "original intent of the parties."

2) __________: look at the "aims and objectives" of the treaty.

3) __________: look at the "clear and ordinary meaning of the words."

Textual Approach

b. Approach emphasized in Vienna Convention: ____________

1) Other interpretative methods may be used to "confirm" the meaning of a treaty or when the

preferred approach leads to ambiguous or absurd results.

Termination

treaties may be terminated by or because of:

a. Consent of the parties.

b. Material breach of the treaty by a party.

c. Impossibility of performance: the permanent disappearance or destruction of an object indispensable for the execution of the treaty.

Fundamental change in circumstances: an unanticipated change which essentially affects the basis on which the parties gave their consent

and which would radically transform the obligations still to be performed by the parties.

e. Emergence of a new peremptory norm (a jus cogens) of international law.

Customary Law

_________Rules that have been around for a long time or which are generally accepted.

Caveat: Customary rules are constantly changing.

Establishing the Existence of a Customary Law:

Must show two elements—one behavioral and one psychological:

1. Usus

2. Opinio Juris Sive Necessitatis

1. _________(Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one

of noninvolvement) by states.

• Does not have to be a lengthy practice.

• Does not have to be followed by all states.

2. _________(Latin for: "of the opinion that it is a necessary law."): The custom must be regarded by states observing it as one that they must obligatorily follow.

Exceptions to the Application of Custom

1) Persistent objector: A state which persistently objects to a practice during its formative stages does not become a party to it.

2) A state allowed by the international community to deviate from a customary practice.

The Paquete Habana

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations ....

General Principles of Law

law common to the community of states.

2. Common Sources: The domestic procedural laws of states (but not their substantive laws).

3. Examples of General Principles

⬥ a. A state must consent before being bound to an international agreement.

⬥ b. States must be treated equally regardless of their size or strength.

⬥ c. The awards and judgments of international tribunals are to be respected as final.

⬥ d. One state will not interfere in the domestic jurisdiction of another state.

Subsidiary Sources

1. Writings of Publicists

2. Decisions of International Courts and Tribunals

3. Ex Aequo et Bono

2.__________Caveat: Doctrine of stare decsis does not apply in international courts and tribunals.

3.__________a. Defined: Latin for "according to what is right and good," it implies the use of compromise, conciliation, and a friendly settlement between the particular parties to a dispute.

• In practice it is used to mean "equity" as that term is used in common law courts.