STUDY UNIT TWO PART TWO | SOURCES OF
INTERNATIONAL LAW RE TREATY LAW
A. Learning Outcomes
After this segment of the module students should be able to…
• Explain the process of treaty making and apply the Vienna Convention to this
process.
• Explain the process of interpretation and challenges to validity of a treaty under the
Vienna Convention.
Abbreviations:
Vienna Convention on the Law of Treaties 1969 = “VC”
• Articles: 2(1)(a); 6, 7, 8
B. Objectives
To establish…
• What is the law of treaties
• Who can conclude a treaty?
• Understanding the relevant provisions of the VC
• What is a restoration and when can it be invoked
• If states become parties to international treaties they have the right to
subscribe to some of the provisions and choose to not be enjoined to others
which is known as reservation
Article 38 of the Statute of the ICJ — Sources of International Law
• The first source listed is conventions which will be discussed now
• Look at the Vienna Convention 1969 — spells out all the different rules and
regulations that regulate international treaty law making
• There is an international law treaty that sets out all the rules in how an international
treaty operates
• Define it
• Who can be a party to a treaty
• Ratification?
• Interpretation? Are all states following it as it should be
1 Giylah Liebenberg
, International Law | SU 2(2)
1. The law of treaties
Principles:
• International agreements between states: treaties, conventions, covenants or
agreements — all international agreements just named or termed differently
• ICJ: If a treaty exists between parties, it must be applied, especially before a
custom
• Agreements are more detailed, draw easier reference from it, easier for a court
to apply it
• A treaty only applies to those states that have agreed to it – general rule a treaty
does not bind 3rd parties.
• 2 things to remember:
• The rule applicable could be available in CIL
• There is one exception: jus cogens rules that binds everyone regardless
• Cannot renegotiate those principles away — state sovereignty, non-
intervention, right to equality, self-determination, etc
Great difference between international law and domestic law:
• States can opt out of legal provisions by not becoming members or by making
reservations.
• There are certain agreements where this is not permissible however
1.1 Two types of treaties
• Bilateral or biparty agreements (eg treaties of extradition) —> between 2 states
• Multilateral or multiparty agreements —> between more than 2 states
Our major concern are the multilateral agreements with 100s of state parties
Examples:
• 193 to the UN charter — international treaty establishing the United Nations
• 191 to the CRC
Q: What is a treaty?
Answer: Article 2(1)(a) of the Vienna Convention —> point of departure for
treaty law
“For the purposes of the present Convention:
• (a) ‘treaty’ means an international agreement concluded between
• States + in written form and governed by international law,
• whether embodied in a single instrument or in two or more related instruments
and
• whatever its particular designation.”
2 Giylah Liebenberg
, International Law | SU 2(2)
From art 2(1)(a) we can conclude that…
1. The agreement must be in written form
• Possible for states to have an agreement in oral form but it is preferable and
will apply preferentially a written agreement
2. Must reflect the intentions of the parties
• This is why we have a preamble in many treaties that explain the context of the
agreement and the intentions of the party when this agreement was concluded
3. Must be on a topic governed by international law
• Q: How do we determine this?
• In the advisory opinion on the Israeli Wall case the International Court was
specific in saying it has a broad perspective in what is harboured in IL
• Very limited POD but now we have agreements in relation to almost every
topic covered by IL
• This element is becoming more and more irrelevant for this reason
Q: How is a treaty made?
1.2 Treaty-making powers
• In most cases we have the Constitution giving us some food for thought and some
relevant rules that help us to understand the international process
Article 6-8 Vienna Convention + Section 231(1) SA Constitution
• 6, 7 and 8 —> discusses treaty-making powers
• This is reflected in SA Constitution in section 231(1)
Capacity
Art. 6 VC —> Capacity to conclude treaties
“Every State possesses capacity to conclude treaties.”
• Legal capacity of states is an outcome of their capacity to conclude international
treaties
Full powers
Art. 7 Vienna Convention —> Full powers
“1. A person is considered as representing a State for the purpose of adopting or
authenticating the text of a treaty or for the purpose of expressing the consent of the
State to be bound by a treaty if:
• (a) he produces appropriate full powers; (accredited in some way or another) OR
3 Giylah Liebenberg
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