2 - Sources of International Law

Sources of International Law

  • Definition: Sources of law can refer to historical, ethical, social, or legal bases for rules.

  • Binding Nature: Recognizes that international law comprises binding rules, supported by consent or meta-legal principles (justice, equity).

  • Unity of Sources: All sources of international law form a cohesive system; some derive from consent (treaties), while others rely on ethical considerations.

Identification of Sources

  • Statute of the ICJ (Art. 38)

    • Sources include:

      • International Treaties: Binding agreements between states.

      • Customary International Law: General practices accepted as law.

      • General Principles of Law: Recognized by civilized nations.

  • Judicial Decisions and Teachings: These inform the application of law but are secondary.

  • Hierarchy of Sources: No explicit hierarchy, though treaties may be prioritized for convenience.

Law-Making Process in International Law

  • Decentralization: Lacks a central law-making authority; states primarily create international law.

  • Principles of Justice and Equity: Integral to the formulation and acceptance of norms in international law.

  • Stages of Treaty Formation:

    1. Negotiation: Drafting and preliminary agreement.

    2. National Acceptance: Ratification or accession procedures.

    3. Implementation: Enacting the treaty domestically and modifying it as necessary.

Development of Customary International Law

  • Basis: Traditional source of international law, consisting of established state practices and opinio iuris (belief that such practices are required by law).

  • Flexibility: More adaptable than treaty law, allowing rapid responses to global changes.

  • Relevance: Customary law remains significant, despite the growth of treaties.

General Principles of Law

  • Definitions: Derived from meta-legal principles or specific bodies of law.

  • Role in Jurisprudence: Used by courts to interpret treaties and influence international law development.

  • Examples: Principles of good faith and humanitarian obligations as seen in ICJ cases.

Contributions of International Organizations

  • Norm-Creation: Play a significant role in developing international normative orders.

  • UN Security Council's Role: Some resolutions regulate relations, establishing norms or frameworks.

  • General Assembly Resolutions: Often declaratory of existing customary law; can lead to future treaties.

Contribution of Courts and Tribunals

  • Judicial Interpretation: Though typically interpretative, decisions can contribute to the evolution of customary law and treaty application.

  • Binding Nature of Decisions: Usually limited to the parties involved but can guide future cases.

Emerging Trends in International Law Development

  • Influences of Non-State Actors: Increasing role of NGOs in shaping laws and treaties.

  • Soft Law: Non-binding norms are gaining traction and influencing binding regulations.

  • Codification and Restatements: Informal processes alongside formal treaty creation, exemplified by the development of guidelines and handbooks by expert bodies.

Ius Cogens

  • Definition: Peremptory norms that hold higher status than other treaties or customary laws.

  • Recognition: Must be accepted universally; lacks significant state practice indicating concrete norms but exists in academic discourse.

Conclusion

  • Expansion of International Law: Broader scope affecting domestic matters, increasing influence of various actors in the normative order.

  • Stabilizing Factor: Prescribes obligations and regulates conduct among states and other international actors, forming a framework for international relations.

Vienna Convention on the Law of Treaties 1969

  • Date and Information

    • Done at Vienna on 23 May 1969.

    • Entered into force on 27 January 1980.

    • United Nations, Treaty Series, vol. 1155, p. 331.

    • Copyright © United Nations 2005.

Preamble to the Convention

  • Purpose of Treaties

    • Acknowledges the fundamental role of treaties in international relations.

    • Stresses the importance of treaties as a source of international law and in fostering peaceful cooperation among nations.

  • Key Principles

    • States that free consent and good faith are universally recognized principles.

    • Affirmation that treaty disputes should be resolved peacefully and in alignment with international law.

  • UN Charter Principles

    • Recognizes principles like equal rights, self-determination, sovereignty, and human rights.

    • Emphasizes the contribution of the Convention to the UN's goals of promoting peace and cooperation.

Article 1: Scope

  • Applicability

    • The Convention applies to treaties exclusively between States.

Article 2: Definition of Terms

  • Key Definitions

    • Treaty: An international agreement between States, in written form, governed by international law.

    • Ratification, Acceptance, Approval, Accession: Acts through which a State expresses its consent to be bound by a treaty.

    • Full Powers: A document designating a person to represent a State in treaty-related matters.

    • Reservation: A unilateral statement regarding the exclusion or modification of treaty provisions.

    • Negotiating and Contracting States: Definitions elaborate on States’ roles in drafting and consenting to treaties.

  • Exclusions

    • States that the Convention does not apply to agreements between States and other entities or agreements that are not in written form.

Article 4: Non-retroactivity

  • Application

    • The Convention applies only to treaties concluded after its entry into force.

Article 5: Treaties and International Organizations

  • Applicability

    • The Convention applies to treaties that act as founding documents for international organizations.

Part II: Conclusion and Entry into Force of Treaties

  • Article 6: Capacity

    • Every State has the capacity to conclude treaties.

  • Article 7: Full Powers

    • Defines representation conditions in relation to treaty text adoption, confirming necessity for appropriate authority to act on behalf of a State.

  • Article 9-10: Adoption and Authentication

    • Specifies consent for treaty text adoption, with provisions for adoption at international conferences and methods for text authentication.

  • Article 18: Object and Purpose Obligations

    • Obligates States to refrain from acts that would undermine a treaty's objectives prior to its entry into force.

Section 2: Reservations

  • Article 19: Formulating Reservations

    • States may formulate reservations unless prohibited by the treaty.

  • Article 20: Acceptance and Objection

    • Details acceptance criteria for reservations and implications of objections to them.

Section 3: Entry into Force and Provisional Application of Treaties

  • Articles 24-25: Regulate how treaties enter into force and when provisional applications can occur.

Part III: Observance and Application of Treaties

  • Article 26: Pacta sunt servanda

    • Treaties in force must be performed in good faith.

  • Article 27: Internal Law

    • A party cannot excuse non-performance of a treaty by invoking internal law.

Part IV: Modification of Treaties

  • Article 39: Amending Rules

    • Treaties may be amended through mutual agreement, subject to the provisions of the original treaty.

Part V: Invalidity, Termination, and Suspension of Treaties

  • Article 42: Validity Requirements

    • Treaties’ validity may only be questioned as per the conventions detailed within.

  • Article 54-60: Govern termination procedures, with specific provisions for multilateral treaties.

Part VI: Miscellaneous Provisions

  • Articles 73-75: Address scenarios of succession, international responsibility, and relation to treaties.

Part VII: Depositaries and Notifications

  • Article 76: Designation of Depositaries

    • Outlines the roles and responsibilities of treaty depositaries including registration, notifications, and corrections.

Part VIII: Final Provisions

  • Articles 81-85: Cover signature, ratification, accession protocols, and the authenticity of the original Convention texts.

Overview of ECOWAS Withdrawal

  • On 28 January 2024, Burkina Faso, Mali, and Niger announced their withdrawal from the Economic Community of West African States (ECOWAS).

  • The withdrawal was a response to political and economic sanctions imposed on these countries following recent coups and unconstitutional government changes.

  • Observers suggest that these actions are intended to weaken ECOWAS's authority.

  • The communiqué cited ECOWAS's failure to provide assistance amid ongoing jihadist insurgencies in the Sahel as justification for the withdrawal.

Legal Basis for Withdrawal

  • According to Article 91 of the revised ECOWAS Treaty:

    • States wishing to withdraw must give one year’s written notice.

    • Member States must continue to comply with the treaty provisions during this notice period.

  • On 7 February 2024, Mali announced it would not honor this waiting period, citing "legitimate reasons" and ECOWAS's violations of its own rules.

Withdrawal Clauses under International Law

  • Article 54 of the Vienna Convention on the Law of Treaties (VCLT) stipulates that withdrawal must align with treaty provisions.

  • Most treaties since 1945 include withdrawal clauses, often requiring a waiting period before withdrawal becomes effective.

  • In 1999, Mauritania's withdrawal from ECOWAS was noted but delayed until 2000, consistent with the treaty’s provisions.

  • The VCLT establishes that withdrawal clauses are integral to treaties, limiting a state from claiming its consent was invalidated upon issuing a denunciation notice.

Material Breach Argument

  • The Malian statement suggests the recent sanctions and suspensions of the three States by ECOWAS may provoke a claim of material breach under Article 60 of the VCLT.

  • ECOWAS's suspensions occurred under the 2001 ECOWAS Protocol on Democracy and Good Governance, which allows sanctions in cases of constitutional transfer of power.

  • The legality of ECOWAS's actions could be challenged if seen as contrary to the objectives of enhancing cooperation and stability as articulated in the ECOWAS Treaty.

Change of Circumstances Argument

  • The countries claim that lack of assistance in combating terrorism and insecurity may justify their withdrawal under Article 62 of the VCLT due to changed circumstances.

  • However, such a claim does not reflect a significant alteration in the obligations established when ratifying the ECOWAS Treaty or the Protocol.

  • The obligations to restore democracy in these countries are distinct from the security challenges faced.

Formation of Alternative Alliances

  • The three States have established the "Alliance of Sahel States," which may be aimed at fostering military ties away from ECOWAS and France and promoting connections with Russia.

  • This move appears to undermine the objectives of ECOWAS while lacking legal backing from either the ECOWAS Treaty or the Protocol.

Implications for International Law

  • There are broader concerns about the implications of claims to instantaneous withdrawal, which lack legal support and may challenge the established principles of international law.

  • Proper "wait" provisions within treaties serve to manage transitions and protect rights before treaty obligations conclude, highlighting the need for stability and adherence to legal frameworks in international relations.