Creating International Law

International Law refers to a set of rules and principles that govern relations between states and other international actors.

International Law is generated from various sources, including customary practices, treaties, and different legal documents.

Definition: Customary International Law is a type of law based on unwritten rules that arise from general practices accepted as legal obligations.
- Components:
- Repeated Behavior of States: Consistent actions of states over time.
- Opinio Juris Sive Necessitatis: The belief that such behavior is legally obligatory.
Binding Nature: Customary International Law is binding on all states, as it involves norms recognized universally without the need for documentation.
Role: Fills gaps within international law; addresses issues rapidly changing situations where formal treaty laws are not yet established, e.g., the rise of non-state actors such as terrorist groups.

Definition: International Treaty Law consists of formal written agreements between states.
Characteristics: Governed by specific constitutional mandates and usually prescribe obligations and enforceable mechanisms.

Also referred to as war law; it governs the conduct of armed conflicts and protections for those not participating in hostilities.
Examples include the Geneva Convention and The Hague Regulations.

Instrument: A general term used for any legal framework aimed at addressing international issues; can be binding or non-binding.
Agreement: Defined broadly under the Vienna Convention as international agreements without necessarily meeting the criteria of treaties.
Treaty: A legally binding agreement among states with various names including protocols, conventions, pacts, etc.
- Characteristics: Involves legal obligations and often includes punitive measures.
- Structure: Governed by specific laws on treaties and has provisions allowing for reservations given that they do not undermine treaty intentions.

Signing vs. Ratification:
- Signing indicates a state's intention to adhere to a treaty without immediate legal binding.
- Ratification transforms the signed treaty into a legally binding instrument, varying by state practices.
- Example Process in the U.S.:
  - Senate consideration.
  - Requires a two-thirds majority approval.
  - Presidential signature for enactment.

Function: Acts as a comprehensive framework defining treaties' roles and stipulations.
- Key Articles:
- Consent to be Bound: Conditions under which a state consents to a treaty.
- Interpretation of Treaties: Requirement for good faith interpretation, considering the text's plain meaning and context.
- Pacta Sunt Servanda: Principle asserting that treaties must be honored by states in good faith.
- Invalidity, Termination, & Suspension: Conditions for declaring a treaty ineffective.
- Amendment and Modification: Procedures for altering treaty provisions.
- Non-retroactivity: Treaties do not apply to events occurring before their inception unless specified otherwise.
- Third States: Outlines conditions under which obligations exist for states not party to a treaty.
- Dispute Resolution: Mechanisms for settling disagreements that arise related to treaty interpretation or application.

Regulations: EU laws applicable across all member states, integrated into domestic systems.
Directives: EU laws setting goals for states without prescribing methods to achieve them.
Decisions: Targeted binding laws against specific entities or individuals.
Charters: Formal instruments delineating the structure of international organizations (e.g., UN Charter).
Conventions: Agreements with specific definitions, including formal multilateral treaties with wide-reaching implications.
Declarations: Various forms such as treaties, interpretative clarifications, informal agreements, or unilateral accords that may create legal bonds.
Exchange of Notes and Memoranda of Understanding (MoUs): Less formal instruments that outline operational agreements, often not requiring ratification.
Protocols: Subordinate agreements linked to treaties for clarification and establishment of additional rights and obligations.
Parties and Contracting States: Definitions of actors involved in treaties, indicating the states and entities that consent to be bound by a treaty's terms.