2. Sources of International Law: Treaties, Interpretation and Soft Law Flashcards
Lesson 2
Why do (small, big, European, non-European) states follow international law?
- Security
- Trade (internatinal cooperation)
- Aligns with their norms,
- Pragmatism: International law offers a framework for resolving disputes peacefully, reducing risks of conflict.
Soft law
Soft law differs from treaties and customary international law in terms of binding nature and creation.
Soft Law: Non-binding; includes guidelines, declarations, and principles that states are encouraged but not obligated to follow.
Example: UN General Assembly Resolutions, such as the Universal Declaration of Human Rights.
Treaties: Legally binding agreements between states, governed by international law.
Why might states prefer adopting soft law instruments instead of binding treaties?
Because Soft law allows for flexible and rapid responses to emerging global challenges, especially in areas where legal certainty is not yet possible or desirable.
States adopt soft law instruments in order to codify or assist in the development and application of general international law, or because they are the first step in a negotiating process eventually leading to conclusion of a multilateral treaty (Evans book, p. 125).
ICJ artcile 38(1)
The sources of international law
Customary law,
General principles of law (UN Charter art. 2)
Treaties.
Secondly: judicial decisions and the teachings of the most highly qualified publicists of the various nations,
VCLT art. 31-32
Interpretation:
1. Wording (ordinary meaning)
2. Good faith
3. Context
4. Object and purpose.
32:
- Obsure, absurd and ambigios: travaux preperatories.
Pacta sunt servanda
“agreements must be kept.”
Binding nature.
Interpret in good faith.
Art. 26 VCLT.
Reservations
A unilateral statement by a state, made when signing, ratifying to a treaty, intending to exclude or modify the legal effect of certain treaty provisions.
Impact:
Can limit the treaty’s effectiveness by creating legal inconsistencies between states.
May undermine the spirit of the treaty if reservations are broad or extensive.
Genocide Convention exemplify the transition from soft law principles to binding legal obligations
1946 UN General Assembly Resolution 96(I), a soft law, not legally binding.
1951 - Genocide convention effective
Customary Law
State practice and opinio juris.
Widespread Participation: Look for broad and representative state engagement across regions and legal systems.
Consistency: Examine whether states have acted in a similar manner over time.
Duration: While practice does not require centuries, it must occur over a sufficiently long period to demonstrate acceptance.
Examples of Evidence:
Diplomatic actions (e.g., protests or agreements).
Domestic laws and judicial decisions.
Official statements or policies.
ICJ art. 38
Same level of legality as trties.
What is the impact of jus cogens norms on treaties and their interpretation?
Article 53 of the Vienna Convention on the Law of Treaties (VCLT), any treaty that conflicts with a jus cogens norm is not valid.
A treaty permitting acts of slavery or genocide would be invalid because it violates jus cogens norms.
Conformity Requirement: Treaties must be interpreted in a way that aligns with jus cogens norms.
Example: A treaty clause on extradition cannot be interpreted to allow extradition to a country where the individual faces torture, as torture violates jus cogens norms.
Guidance for Ambiguities: When treaty terms are ambiguous, interpretation must favor adherence to jus cogens principles.
How do humanitarian treaties like the Geneva Conventions illustrate treaty interpretation challenges?
Humanitarian treaties like the Geneva Conventions face interpretation challenges due to their broad principles and evolving contexts:
Text vs. Purpose: Balancing literal language with humanitarian goals (e.g., defining “humane treatment”).
Modern Conflicts: Adapting to civil wars, non-state actors, and asymmetrical warfare.
Ambiguity: Terms like “proportionality” allow varied interpretations.
New Technologies: Applying rules to drones and cyber warfare creates gaps.
Reservations: States’ differing interpretations limit uniformity.
Challenges with sovereignty Genocide Convention
The UN Convention on the Prevention and Punishment of the Crime of Genocide challenges absolute sovereignty by imposing legal obligations that limit states’ control over internal affairs:
Prevention and Punishment: States must prevent and prosecute genocide, overriding claims of exclusive domestic jurisdiction.
Universal Jurisdiction: Allows prosecution of genocide regardless of where it occurs, limiting state autonomy.
International Accountability: Enables international courts like the ICC to hold individuals accountable, bypassing state protection.
Collective Responsibility: Influences the Responsibility to Protect (R2P) principle, justifying intervention when states fail to act.
The Convention prioritizes global accountability and human rights over absolute state sovereignty.
Article 2(1) and Article 2(7)
Article 2(1): Affirms sovereign equality of all states.
Article 2(7): Prohibits UN interference in domestic matters, except under Chapter VII for threats to peace.
This balance protects state autonomy while enabling collective action in global crises.
Article 39 of the UN Charter
Article 39 of the UN Charter empowers the Security Council to identify threats to peace and decide on responses, shaping how norms like sovereignty and security are applied.
Article 124 of the ICC Statute
Article 124 of the ICC Statute allows states to opt out of ICC jurisdiction over war crimes for seven years upon ratification, easing concerns for new members. It excludes genocide and crimes against humanity, ensuring limited impact on the Court’s core jurisdiction.
