International Law Notes
Customary Rules and Flexibility
Customary rules bind all states, are unwritten, and stem from practice. These rules are considered flexible.
Flexibility means states can agree on a subject matter in different terms, potentially derogating from customary rules.
Examples include France and the UK, Malta and Italy, where states may deviate from the 12-mile territorial sea limit if coasts are less than 24 miles apart.
States can develop inner relations with rights and duties that differ from customary law through cooperation and treaties.
Derogation from customary law is lawful only through treaties; unilateral conduct is a violation.
Treaties and Customary Law
When states enter a treaty that departs from customary law:
The treaty applies in relations between states bound by it.
Customary rules apply in relations between a treaty state and a non-treaty state.
Jus Cogens
Jus cogens refers to binding law that cannot be derogated; it prevents conduct different from what is provided.
Jus cogens norms are also called peremptory norms and are identified among customary rules.
Treaty departure from jus cogens is not possible.
Jus cogens norms are at the highest level of the hierarchy of international legal sources.
International Community and Common Values
International law (IL) is made by states, for states, and about states.
The international society of states has developed into a community based on common values.
These shared values are recognized by all members of the community.
Fundamental Values and Jus Cogens Norms
Fundamental values underlying jus cogens norms:
The right of self-determination.
The prohibition of aggression.
International rules of humanitarian law (protection of individuals during war or conflict).
Prohibition of genocide, torture, slavery, racial discrimination, and apartheid.
Humanization of International Law
Individuals are increasingly considered in IL, reflecting the humanization of international law.
The prohibition on states torturing individuals is a value that considers human beings, not just states.
The essential core of human rights, particularly when violated through genocide, torture, slavery, or racial discrimination, is protected by jus cogens norms.
Optimistic scholars argue that jus cogens covers gross human rights violations, including large-scale violations or those denying physical integrity and human dignity.
Treaties Contrary to Jus Cogens
A treaty contrary to jus cogens is null and void.
Ex nunc: The treaty becomes null and void from a certain time of its existence.
Ex tunc: If a treaty competes with an existing jus cogens norm, it is immediately void and produces no legal effect.
Erga Omnes Obligations
Erga omnes obligations are duties owed towards all states (ICJ definition).
They protect the most relevant interests of the whole international community.
All jus cogens norms are erga omnes rules.
An erga omnes rule provides for an obligation and corresponding rights, where the obligation is owed to all states.
If an erga omnes obligation is violated, all states may claim the violation.
Jus Cogens Violations and State Responsibility
If a state violates a jus cogens norm, all states may claim the international responsibility of the violating state, not just the injured state.
Example: The UK violated the jus cogens norm of self-determination regarding the Chagos Islands; any state may claim the UK's international responsibility.
States can resort to countermeasures as self-done justice.
All states have a legal interest in protecting erga omnes norms.
Erga omnes obligations apply to customary and treaty rules, including human rights and environmental treaties.
Jus Cogens vs. Erga Omnes
Jus cogens pertains to normative value (superiority), while erga omnes is a structural feature (to whom an obligation is owed).
All jus cogens norms are erga omnes, but not all erga omnes rules are jus cogens.
The prohibition of the crime of aggression is erga omnes but not jus cogens.
Technically, jus cogens and erga omnes are defined differently but relate to fundamental norms of binding nature for the international community.
Treaties: Definition and Purpose
Treaties may also be called agreements, covenants, or charters.
Contracting parties to treaties are states or international organizations (IO) bound by a treaty.
Treaties are sources of international law founded on an exchange of consent between states or among states.
Treaties exist because states have identified common interests and want to cooperate to achieve them.
A treaty is a contract based on the will of the parties to be bound and creates rights and obligations.
Treaties only bind the parties to them but must be performed in good faith.
Vienna Convention on the Law of Treaties (VCLT)
The Vienna Convention of the Law of Treaties 1969 is a codification of customary norms on treaties.
Creating treaties is an old practice, and the VCLT writes down customary rules on how to conclude treaties.
The VCLT primarily applies to written treaties.
France is not a contracting party to the VCLT, but the convention's rules apply in relations between France and other states because it mostly reproduces customary norms.
Conclusion of Treaties
Conclusion of a treaty is a sequence of steps or a procedure.
States follow two main procedures (solemn/foreign and simplified), but remain free to choose.
Negotiations are conducted by authorized persons, usually within the executive powers (e.g., minister of foreign affairs).
The position of a state in a negotiation involves an internal process involving the government and parliament.
Negotiation Process
The negotiation involves states finding common interests, with specific interests negotiated.
Negotiators should not be corrupted by other states; corruption makes the acts of the corrupted negotiator non-binding.
Bilateral negotiations often involve sending missions to another state or exchanging letters.
Multilateral negotiations involve meetings of states, often within international conferences or IOs.
NGOs can influence treaty content.
New Developments in Treaty Law
New treaties are being concluded, especially in light of commercial space exploitation.
A recent treaty addresses the biological diversity of the high seas.
Steps in Treaty Conclusion (Solemn Procedure)
Negotiations: Authorized persons negotiate, with the state's position built through an internal process.
Negotiations.
Adoption of the texts
Authentication of the texts
Ratification of the treaty
Registration to the UN secretariats (optional)Adoption of the Text: A common understanding is reached, and the text is adopted by unanimity or consensus, though it can be adopted by majority.
Authentication of the Text: Signing the adopted text certifies that it reproduces the negotiation's outcome.
Ratification of the Treaty: This internal act binds the state to the treaty; regulated domestically, e.g., by the president upon parliamentary authorization.
Process: Ambassadors send signed texts; ratification is a stage that occurs at home.
Parliament's role: When treaties deal with financial matters or territorial changes, parliamentary approval is required.
Exchange and Deposit of Ratifications
The internal act of ratification must be officially communicated.
Bilateral treaties: Exchange of instruments of ratification.
Multilateral treaties: A depositary (state or IO) is chosen.
Entry into Force
Entry into force: Occurs when the treaty starts producing legal effects.
Bilateral treaties: When the latest state has ratified and exchanged the instrument.
Multilateral treaties: Depends on the threshold chosen by negotiators (e.g., ratification by a certain number of states).
Treaties can be closed or open.
Simplified Procedure
Simplified procedure: The signature is enough for binding the state, without ratification (Art. 12 of the Vienna Convention on the Law of Treaties).
Limitations: Not all treaties can use this procedure.
Considerations: The Italian constitution gives the Parliament a role in certain treaties.
Reservations to Treaties
Rationale: Treaties deal with complex issues, and reservations allow more states to be bound by departing from or interpreting some provisions.
Reservations are unilateral acts, not common declarations.
Reservations can be made when signing, ratifying, accepting, approving, or acceding.
Evolution of Reservations
In the past, reservations had to be announced during negotiations and written in the texts.
Now, reservations are made unilaterally.
Types of Reservations
Reservations can exclude clauses, modify texts, or interpret treaty texts.
Before 1951, reservations were possible only when expressly agreed during negotiations.
The ICJ identified an evolution, allowing reservations at any time with constraints.
Constraint of Reservations: Object and Scope of the Treaty
Reservations cannot be contrary to the object and scope of the treaty.
Example: Switzerland's reservation on Article 6 of the ECHR was deemed contrary to the scope and object of the treaty.
If a state excludes provisions that present the core of the treaty, it cannot be bound by it.
Consequences of Reservations
Other state parties can object to a reservation.
If a state hasn't objected, the treaty relationship is governed by the reservation's terms.
If a state objects, that treaty provision doesn't apply in the relation between those two states.
If states are not bound by treaty provisions due to reservations, they are bound by customary law.
Effects of Treaties on Non-Parties
The binding force of treaties only concerns the parties (principle of relative effects).
Pacta tertiis nec nocent nec prosunt: Treaties neither damage nor favor third parties.
If a third party is bound by an obligation in a treaty it has not ratified, this implies that this third party has consented in writing to be bound by that obligation.
If a state is conferred a right by a treaty, consent of non-parties is presumed.
Interpretation of Treaties
Interpretation involves understanding the rights, obligations, and meaning of treaty provisions.
Treaties often contain general provisions and vague terms.
IL provides a compulsory method for interpreting treaties.
Rules of Interpretation
Treaties cannot be interpreted according to the rules of interpretation of a given state.
Customary rules of IL on interpretation of treaties exist, and the Vienna Convention is considered a codification.
Art. 31 VCLT provides the general rule, with three meanings of interpretation:
Teleological interpretation.
Systemic interpretation.
Literal interpretation.
Application of Interpretive Rules
The interpreter doesn't have to follow a specific order or give different weights to these ways of interpretation.
Domestic judges must follow this general rule and adopt an objective test.
Art. 31 most important elements:
A treaty must be interpreted in good faith.
The ordinary meaning of the terms (literal interpretation).
The terms in their context (systemic interpretation).
The terms in their purpose (teleological interpretation).
Supplementary Means of Interpretation
Art. 32 deals with supplementary means, which are auxiliary and not compulsory.
If the interpreter cannot reach a sound interpretation, ambiguities may be solved with these means.
Invalidity of Treaties
Invalidity implies that the treaty is null and void and never had effects since conclusion.
Grounds of invalidity:
Violation of domestic rules of foreign relations law (manifest violation of internal rule).
Error.
Fraud.
Corruption.
Coercion (inter-state or against a state representative).
Termination of a Treaty
Termination: Ceases to produce effect from a certain point on.
Causes:
One party renounces the treaty (e.g., Russia renouncing the ECHR).
Venezuela or South Africa decided to get rid of the bilateral investment treaties violations because it was found in violations for protecting foreign investments
Regulated by the treaty itself (lex specialis).
Another treaty on the same subject matter concluded later in time.
Breach of contract by one party.
Fundamental change of circumstances.
Succession of States in Respect to Treaties
This issue concerns changes in sovereign entity over a territory.
Changes may happen lawfully, e.g., merging of two states or unlawfully for example by occupation or invation.
Changes of public entities over a territory may happen lawfully in some circumstances in IL, so we don't only have to consider an occupation or invasion which would be unlawful.
If two states decide to merge, if there is a chosen merging of two states, this is perfectly lawful.
The main concern is what happens to treaties concluded by the previous governing state when a new state takes over.
Tabula Rasa
Is a table which has nothing on it. Means that was existing before has been thrown away, has been cancelled.
Treaties concluded by the predecessor do not bind the successor (tabula rasa).
The successor state is free to choose which treaties to be bound to.
Exceptions to Tabula Rasa
Treaties on the use of territory.
Treaties on debts.
Mobility of Frontiers
Defined as secession.
When a part of a state detaches itself to join another existing state.
Secession Hypothesis A, mobility of borders: Part of a state detaches itself to join another existing state.
When a portion of a territory of a state detaches form that state but becomes a new state, then there is tabula rasa.
South Sudan is free to conclude all treaties it wants, it is not bound by any treaties of Sudan a part from treaties on the use of territory and debts.
Dismemberment. Rules are applied in abstract in a very linear way but then reality is much more complex
If we simply apply the rules, in case of dismemberment the previous state ceases to exists and new states come into existence
General Principles of IL and Acts of IO
Art. 38 of the ICJ Statute lists what the ICJ should consider in solving disputes.
General principles of law, recognized by civilized nations, fill gaps, link dots, and shape the legal order.
*They come out from the states, so they are found in common of states legal orders.
Which states? Those which follow the rule of law, so not totalitarianisms or dictatorships.
tend to use global south, with a completely different meaning. In the past, third world was for underdeveloped or developing countries, including non-allying countries where economic development and rule of law were not at the same level as the other countries.In IL, these principles come from the common legal orders of states that follow the rule of law.
Acts of IO
Treaties foresee the adoption of legal acts, especially those expanding IOs.
*Types of acts adopted by IO:
*How the bodies of the IO relate to one another. So for example an inter-institutional agreement between the GA and the SC on how the GA deliberate its communications to the council exc.
But these acts only have internal effects concerning the bodies of IO.
*Produce external legal effects, meaning that these acts produce legal effects vis a vis other international subjects.Two types of acts:
Acts concerning how IO bodies relate (internal effects).
Acts with external legal effects, addressing other international subjects.
Most IO acts are recommendations and non-binding.
International Responsibility
The notion of responsibility. Wrongful conduct: wrongful, as far as law is concerned, is contrary to a rule. So wrongful conduct is conduct which is contrary to a rule and which is not in compliance with a rule. Not a social or ethical rule but a legal one. We could also say conduct that doesn't abide by a rule. Specifically wrongful conduct implies a breach of a rule, a violation.
*Wrongful conduct contravenes a legal rule (breach/violation).
There are three possible subjects in this situation for IL: states, individuals, IO.
Wrongful conduct is conduct which is contrary to a rule and which is not in compliance with a rule. Not a social or ethical rule but a legal one. We could also say conduct that doesn't abide by a rule. Specifically wrongful conduct implies a breach of a rule, a violation.
There are three possible subjects in this situation for IL: states, individuals, IO.
Secondary rules of international law regulate what happens when a rule is violated.
All these rules regulating what happens in the international legal order where a rule is violated are called secondary rules of international law.
In case of a breach or a claim/invocation of a breach by a state against another state, then there's a shift to another set of rules, secondary rules. All these rules regulating what happens in the international legal order where a rule is violated are called secondary rules of international law.
*Primary rules are those regarding treaties. In case of a breach or a claim/invocation of a breach by a state against another state, then there's a shift to another set of rules, secondary rules.