Knowledge Flashcards
(1) Which convention governs interpretation of treaties and;
(2) What are the three principles for interpretation?
(3) who regulates/enforces treaties
(4) what effect does this have on the view of IL?
Art 31 of the VCLT:
- interpreted in good faith
- in the light of its objective and purpose
- in its ordinary meaning to the terms
AND
Art 33 of the VCLT:
- Each language is equal in authority when authenticated by the treaty.
- A language of the treaty other than authorised in the text is only authentic if parties or treaty say
- terms of the treaty are presumed to have the same meaning in each version of text.
regulation -
no single overarching unit regulates a treaty of IL - although pressure can be enforced to coerce parties to act within their obligations in accordance with the treaties - there is no formal form of repercussion on ill-acting parties.
this decentralised nature is considered a downfall of IL and it is debated whether or not L is in fact law. DISCUSS.
In what sense is Public international law “law”? argue for both for an against
Against:
the lack of decentralised features of international law bring downfalls including the lack of its ability to be binding on countries, enforcement and repercussions. this begs the question of how IL can align with the rule of law when a significant element of law is enforceability. No single legislative power - creates different laws and lack of universal standard.
For:
although the decentralised features of IL have shortcomings, the consentual nature of international law makes it more effective. they provide for a flexible and evolving legal system which will be able to continue to address issues of the international community.
- operating everywhere and generally obeyed. (ie 169/193 states to the torture convention)
- pressure from the international community can be just as effective as a treaty being legally enforceable.
- theres also an element of responsibility that becoming signatory to an international law provides - in that states feel responsible to their citizens to uphold what they said they would.
What are the elements of statehood according to the three-elements doctrine by Jellinek
- permenant population
- defined territory
- ability to enter into relations
Elements of customary law
Objective test:
- is it a general practise?
- does it have duration?
- is it a consistent or uniform practise ?
- is it an opinion of law or necessity?
AND
Subjective test:
Is it constant and uniform usage, accepted as law.
NOTE: if asked whether CL permits an act, go through both obj and sub tests to determine.
Sources of IL
Art 38(1) ICJ:
- international convention
- international custom
- general principles recognised by civilised nations
- judicial decisions
What is a treaty?
Art 2(1)(a) VCLT:
- international agreement
- between two states
- in written form
- governed by International law
for a treaty to be valid there must be intent to create legal obligations - formalities do not matter: Qatar v Bahrain
Fitzmaurice’s Six principles of Interpretation
- Actuality of textuality - treaties are to be interpreted as they stand, on the basis of their actual texts
- The natural and ordinary meaning
- Integration -
treaties are to be interpreted as a whole. Ie individual parts, chapters or sections of a treaty are not to be interpreted out of their overall context. - Effectiveness -
treaties are to be interpreted with reference to their declared or apparent objects and purposes - Subsequent practise -
that recourse may be had with reference to their declared or apparent objects and purposes - Contemporaneity - terms of a treaty must be interpreted in the light of linguistic usage current at the tie when the treaty was concluded
What are the different baselines? Explain each.
- Normal baselines
for simple coasts (ie surfers paradise)
measures the low waterline along the coast - straight baselines
for curved coasts (moffat beach)
lines are drawn straight across the water - Juridical baselines
for coasts with large curvature
- if point to point headland < 24nm, straight line drawn here and this marks internal waters.
- if >24nm, the baseline is created where there is a width between land which is 24kn. anything outside (although within the bay technically) are not internal waters. - Archipelagic baselines
used for group of islands off a state claiming rights.
islands must be: - compact
- group of islands
- of geographic economic and political entity
- historic practise
DEBATE:
- Full and exclusive sovereignty of the coastal state
- No right of the innocent passage for other states
- Presumption that ports and waterways re open to foreign merchant ships - but not a custom of internal law norm yet, still discussion about it in the tribunal UN convention.
LOOK AT P46 RIGHT TO INNOCENT PASSAGE.
When is the suspension of right to innocent passage permitted
The suspension of the right of innocent passage (if they maybe don’t have enough water police to monitor etc) must be:
o Essential for the protection of its security
o Temporal
o Limited to specific areas of its territorial sea
o Without discrimination
o Duly published to come into affect (must make
everyone aware before its in effect)
what are the two elements of effective occupation (island of palmas case)
- Two elements of effective occupation:
o Intention and will to act as sovereign
o Actual exercise and display of such authority
when was the VCLT enacted
Jan 27 1980.
cases cannot be brought before the ICJ court involving issues which occurred prior to the enactment of this or another relevant treaty.
They can however try to raise an argument under CL.
When does an entity (state or organisation) have legal personality?
elements:
1. an entity
2. capable of possessing int. rights and duties
3. capacity to maintain rights through bringing international claims
Problem: this is a circular definition and also depends on the existence of a legal person
What are the elements of statehood according to the montevideo criteria?
- Permanent population (Western Sahara Ad opinion)
- Defined territory
- Government
- Capacity to enter into relations with other states
What do law making treaties do
law making treaties create GENERAL NORMS for the future conduct of parties in terms of legal propositions.
true or false - if a treaty violates jus cogens, is it still valid under international law
false. Art 53 of the VCLT.
