Chapter 3 - Making and changing international rules

Question 1

According to article 38 of the international court of justice the court of justice can use the following as sources of law:

Answer 1

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilised nations;

(d) […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto’.

Question 2

What is an international agreement?

Answer 2

• Expression of consent by two or more international legal subjects – basically, states and intergovernmental organisations – over the regulation of a subject-matter.
• The terms treaty, covenant, convention, charter, pact, are synonyms (ICJ, Qatar v. Bahrain, 1994)
• Bilateral treaties (only 2 parties, e.g. international investment treaties) and multilateral treaties (more than 2 parties, e.g. UN Charter, human rights treaties, environmental treaties)

Question 3

What are the basic principles governing the law of treaties:

Answer 3

Treaties must be complied with in good faith (pacta sunt servanda); treaties only produce legal effects for the parties (pacta tertiis neque nocent neque iuvant)

Question 4

What is a reservation to a treaty?

Answer 4

‘a unilateral statement […] made by a state whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’ (Article 1 VCLT).

Reservations can only be made in multilateral treaties.

Reservations cannot be formulated when: they are prohibited by the text of the treaty; they are incompatible with the object and purpose of the treaty; they are in contrast with a rule of jus cogens. There is no centraliaed body checking the admissibility of a reservation.

Question 5

What are some characteristics of custom in international law?

Answer 5

• Main source of international law in its early stage. Unwritten.
• Repetition of a given conduct by a generality of states (Practice/diuturnitas) + consciousness that such conduct conforms to a legal rule or what ought to be a legal rule (opinion juris sive necessitates)
• Relationship between custom and treaties:
  Codification conventions: treaties where customary rules are put in written forms
  In case of conflict between a treaty and a customary rule: no hierarchy. lex specialis derogate generali; lex posterior deerogat priori

Question 6

What are some reasons for the invalidity of a treaty according to articles 46 - 56 of the Vienna convention on the law of the treaties?

Answer 6

• Violation of a provision of the internal law of the state regarding competence to conclude treaties
• Error
• Fraud
• Corruption of a state representative
• Coercion of a state representative or of the state
• Conflict with a jus cogens norm (= rules from which derogation is not allowed)

Question 7

The adoption of the text, is the phase in which ….

Answer 7

The negotiations conclude the negotiations, they won’t touch the text any longer, the adopted text is the text which would be submitted to signature and as a matter of practice through ratification.

Question 8

Is a treaty included into the law of a country once its signed?

Answer 8

No. The means of expression of consent as a matter of practice multilateral treaties are hardly ever subscribed by states through signature.

The signature is a solemn ceremonial step. In which the adoption of the text which marks the conclusion of negotiations is sort of endorsed by the executive, it’s normally the minister of foreign affairs, the prime minister or the accredited head of mission.

Question 9

Is there a standardized means of knowing when a state has ratified a treaty into its national law?

Answer 9

Articles 11 to 15 of the Vienna convention express the means to which states may express their consent.

Every state would have its constitution, which would regulate its own means of consent to an international treaty.

Question 10

What is treaty law?

Answer 10

Its the main source of international law
- based on VCLT + good faith + subjective scope

Question 11

What happens if there is a Conflict between sources of international law according principles? Which would prevail?

Answer 11

There are two rules:
- Lex specialis derogat generali
- Lex posterior derogat priori

Question 12

What is Jus cogens?

Answer 12

• “A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” (VCLT)
• no reservation possible
• enforceable even if State X does not have ratify the treaty
• Examples of jus cogens norms include prohibitions against crimes against humanity, genocide, and human trafficking.

Question 13

What are Erga omnes obligations?

Answer 13

They should be erga omnes partes ( between the signing parts of a state)

Or

Erga omnes

• obligation that every state has toward the entire international community as a whole. The nature of the rules creating erga omnes rules is such that any state has the right to complain of a breach by another state of said rule, because every state has an interest in the protection of the rules that generate erga omnes obligations. For example, a state does not need to be directly or indirectly involved in a case of genocide in order to be able to complain about it.
• A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga omnes obligation is therefore the consequence of a rule being characterized as jus cogens

Question 14

What are the general principles of international law?

Answer 14

• legal norms existing among the majority of nations
• good faith, res judicata, etc.
• gap-filling functions (when treaty and customary law do not provide a rule of decision)
• Sovereign Equality
  -Pacta Sunt Servanda
• Non-Intervention
  -Peaceful Settlement of Disputes

Question 15

What is a sunset clause?

Answer 15

A sunset clause provides for a set period of time, after the termination or expiration of a treaty, during which one party continues to receive certain benefits under the treaty

Question 16

Why would a treaty come to an end?

Answer 16

• 2 situations = termination by consent of the parties OR without regards of their consent
• if termination by consent = expiry of the period fixed in the treaty OR execution of the treaty OR occurence of a resolutory condition OR denunciation or withdrawal OR explicit/taict consent after the conclusion of the treaty
• if termination without regard for consent = breach of obligations OR impossibility of performance OR fundamental change of circumstances OR emergence of a new peremptory norm of general international law (OR effect of situations of international armed conflict)
• • termination if invalidity