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International Law NotesSources of International Law
Article 38 of ICJ Statute
Treaties
o 1973: International community recognized racism as a matter of
internal concern, not just domestic concern. = Created international
crime against humanity called “apartheid”.
o Art. 2 of the Vienne Convention on the Law of Treaties (form of intl.
law, AKA ‘treaty on treaties’, 1969)
A treaty is an international agreement concluded between
States in written form and governed by intl. law, whether
embodied in a single instrument or in two/more related
instruments, and whatever its particular designation.”
Oral treaties are rare
Designations: Conventions, charters etc.
o Bilateral v multilateral v universal
How a treaty binds certain or all states (rare – e.g. UN Charter)
International, regional etc.
o Purposes: Rule-setting v institution-establishing
Some treaties do both
Rule-setting: Intl. Human Rights Treaty etc.
Institution-establishing: UN Charter, Charter of AU etc.
o When a treaty is binding:
When a state CONSENTS
Becomes a ‘party’ to a treaty
Who can consent on behalf of a State?
o Art. 7-8 VCLT: Two classes of officials – 1)
executive; 2) head of state, head of govt &
foreign minister
o Automatic authority (head of state, head of
govt. & foreign minister) vs requirement to
- Signature: Not bound, produce ‘full powers’ (must prove that
but must not act
executive has given him power of authority)
contrary to object and
purpose of treaty. o Section 231 of SA Constitution
- Ratification: Bound Expressing consent: Art 11-14 VCLT
o Signature AND/OR ratification
Treaty-drafting state determines
whether ratification is req.
E.g. Art. 48 of Intl. Covenant on Civil and
Political Rights 1966
Monoism: Internationl law If consent is doubted: look at INTENTION
takes precedent; do not need of parties.
to pass effecting legislation.
Dualism: Need to pass
effecting legislation.
, Sign but no ratification = Art. 18 VCLT
(e.g. SA and ICESCR = long period of time
betw. Signing and rat.) => NOT BINDING!
(if rat. req., but not given)
Still not actively work against
object and purpose of treaty
No authority to sign treaty acc. to
domestic law = Art. 46 VCLT => STILL
BINDING!
STANDARD OF MANIFEST
ICJ in Cameroon v Nigeria (2002)
VIOLATION = if violation of
- Concerned delimitation treaty between two states = Did domestic constitutional law is
treaty needed to be signed AND ratified? objectively obvious => NOT
- Nigeria: Not binding because not ratified. BINDING!
- Cameroon: Never said it had to be ratified, therefore it is Cameroon v Nigeria: Authority to
binding if signed. => ICJ decided in their favour.
sign must be a well-publicized
rule of domestic law
o
What if treaty conflicts with domestic law? Treaty obligation
will take priority (protects integrity of treaty regime, puts onus
on govt. to ensure due diligence)
o Reservations
Art. 2(d) of VCLT: “Unilateral statement…made by a State,
when signing, ratifying, accepting, approving or acceding to a
treaty, where it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to
that State.”
Art. 19-23 of VCLT: Codifies rules set out in Reservations case
Not allowed if:
Expressly excluded
Expressly allows only certain types of reservations
Res is contrary to the object and purpose of the treaty
Consequences of invalid reservation:
State is not party to the treaty
State is bound by whole treaty, without benefit of the
reservation (severance)
o Problematic because it “forces” a State to
become party to the treaty against their wishes
i.e. without reservation
Fisheries Jurisdiction; Reservations.
Interpretation (Art. 31-33 of VCLT)
Art. 31: Interpreted in good faith in accordance with
the ordinary meaning to be given to terms in their
context, and in the light of its object and purpose.”
o ICJ in Competence case at 8.
, Art 31(2): Context of treaty = Preamble, annexes,
agreements made in relation to the treaty etc. (holistic
interpretation)
Art 31(3): Other factors = subsequent agreements,
subsequent practice, other applicable rules of intl. law
o ICJ in Legal Consequences case
Art. 32: Suppl. Means of interp.
o Preparatory work : ’travaux preparatoires’
o Circumstances of conclusion of treaty
VCLT interp. rules are consistent with customary intl.
law = Costa Rica v Nicaragua
Termination (Section 3 of VCLT)
Express provision
o Specified end date and time
o Right to withdraw
Breach
o Gives rise to intl. responsibility of the breaching
State = Claim of ‘state responsibility’
Supervening Impossibility of Performance
Fundamental Change of Circumstance
Termination by Subsequent Treaty
Disuse
Customary International Law
o Definition:
Art. 38(1)(b) of ICJ Statute: “A general practice accepted as
law.”
Asylum case: “Constant and uniform usage, accepted as law.”
o TWO ELEMENTS: State practice + opinion juris (belief that something
is legally obligatory)
e.g. giving immunity to govt. official
State Practice: AKA ‘material element’
Things that states actually do (treaties, judicial
decisions, national legislation, policies, executive
decisions, UN GA Resolutions etc.)
Akehurst: “State practice covers any act or statements
by a state from which views about customary law may
be inferred.”
Duration = North Sea cases, para.73
Uniformity:
o Asylum case = constant and uniform
o Anglo-Norwegian Fisheries case
o North Sea = ‘extensive and virtually uniform’
incl. ‘specially-affected states’(States that are
particularly connected)
o Nicaragua case = ‘settled practice’
Generality:
o Specially-affected states
, o North Sea cases
Opinio Juris: AKA ‘psychological/subjective element’
Belief that a certain actin is legally acquired
Necessary for customary intl. law (where ‘law’ in ‘rule
of law’ refers to intl. law)
o Lotus case (PCIJ)
o North Sea: State practice must be accompanied
by a “general recognition that the rule of law or
legal obligation is involved.”
o Nicaragua case: Need “evidence of a belief that
this practice is rendered obligatory by the
existence of a rule of law requiring it.”
Can we distinguish OJ from state practice?
o Based on state practice
Therefore: Dynamic
o Reflects non-hierarchical, decentralized nature of intl. legal system
o Consent expressed through practice of states
All states can contribute
o Universal - default (Nicaragua case), regional (Asylum case), or
bilateral (Rights of Passage case)
o Changing CIL:
Must act contrary to old CIL to establish new CIL
How can we establish a new rule of CIL if we must show opinio
juris?
Nicaragua: “Reliance by a state on a novel right or an
unprecedented exception to the principle might, if
Requires: shared in principle by other states, tend towards a
1) Uniformity modification of CIL.”
2) Widespread o i.e. changing CIL depends on the reaction of
acceptance other states (accept/deny)
Silence, protest and acquiescence
Must states react to the practice of other States to
signal acceptance/rejection of a rule of CIL? Not always
Silence = acquiescence
o Specially-affected states will usually expressly
disagree, so silence = passive agreement
o Acquiescent states are now bound by the CIL
Requires: Can protesting against another State’s practice stop the
formation of a CIL?
CONTINUOUS
Persistent Objector States
PROTEST!
o Must classify as a POS to not be bound by the
CIL
o Must protest from the beginning, and
CONTINUE to protest as it develops
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