Lecture 5

Question 1

Treaties can be sources of IL

Answer 1

o Some treaties codify a body of customary IL, and are generally accepted as authoritative statements of customary IL, even by non-signatories.
o Treaties cannot bind non-parties, but non-parties can choose to abide by the rules it lays out.

Question 2

Treaties are hard law within IL

Answer 2

o They can pretty much do anything, except authorize violation of a peremptory norm (article 53 of Vienna convention on law of treaties).
o Some draw a distinction between law-making treaties and contractual treaties, but all treaties are contractual.

Question 3

How are treaties made?

Answer 3

o Treaties are written, made between states, represented by people authorized to do so.
o Treaties are distinguished from other international agreements in that they are legally binding. Substance, not form, dictates whether something is a treaty or not.
o Treaties typically have;
 A preamble
 Sometimes a long list of signatories’ names
 Main body
 Signatures/seals
o Then;
 Reservations (not always possible or accepted)
 Protocols
* Only binding for states signing both the treaty and the protocol
* Some can be mandatory.

Question 4

Signatories and ratification

Answer 4

o Signature is usually not the final step. After signatories, the parties have to ratify the treaties, this allows the principal to endorse what the agent has or hasn’t done.
o Most treaties aren’t binding on states until they are ratified, but in the meantime that state isn’t meant to do anything that would defeat the purpose of the treaty.
o Ratification is done according to domestic procedures, usually either the executive or the legislature.

Question 5

Monism

Answer 5

o In monist systems, treaties (IL) do not need to be translated into municipal law. They have a direct effect (Nl). o Some states have a mix of the 2 (USA).

Question 6

Dualist systems

Answer 6

o In dualist systems, domestic legislation is required to translate the treaty obligations into municipal law (UK).
o Some states have a mix of the 2 (USA).

Question 7

Treaties end

Answer 7

 On its own terms (self termination (expiry), disappearance of essential conditions, etc).
 By withdrawal (denunciation).
 In response to a serious breach by one party (sometimes).

Question 8

For a custom to become law we need 2 elements

Answer 8

o The first is evidence of widespread and settled state practice.
 State practice is ascertained not only through the actions of national executives, but also from domestic courts and legislatures, as well as public statements.
o The second is opinion juris, meaning states adhere to the custom because they believe they have a legal duty to do so.
 Opinion juris, a somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own!

Question 9

General principles recognized by civilized nations

Answer 9

• Art 38(1)(c); the general principles of law recognized by civilized nations.
  o There are 2 views about this seldom-invoked source.
   Either it refers to principles which are to be found in most of all municipal law systems, but which do not exist as positive IL.
   Or, it also includes very basic legal principles such as pacta sunt servanda.

Question 10

Other sources of law

Answer 10

• Resolutions of the UNGA (arguably).
• Studies produced by the International law commission even if they aren’t adopted.
• UNSC doesn’t make law, but rather creates specific obligations, backed by a treaty (UN charter).
• Is there a hierarchy of norms? Sort of, but not completely.

Question 11

Article 38(1) refers to ex aequo et bono

Answer 11

article 38(1) refers to ex aequo et bono which means ‘according to the right and the good.’
 Power for the court (and some tribunals) to decide cases based on what they feel is right without reference to any rule of positive law.
 A remanent of natural law in a largely positivist system, but very seldom used.

Question 12

Article 38(1)

Answer 12

generally considered to be authoritative
statutes of the permanent court of international justice

Question 13

Article 38(1)(a)

Answer 13

• Art 38(1)(a): “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states.”

Question 14

general notes

Answer 14

o A note on terminology: treaties can be called all sorts of things, such as agreement, convention, exchange of notes, protocol, pact, etc ,etc.
o The rules relating to treaties are part of customary IL, but also in the Vienna convention on the law of treaties (116 parties), which is viewed as the authoritative restatement ad well as positive law of treaties.
o Strictly speaking, some argue treaties aren’t sources of law as such, as much as they are a source of obligation under the law, binding on its parties (at least).

Question 15

What does this mean? (state practice + opinion juris)

Answer 15

o What this means is that persistent breach of an existing customary rule, in some circumstances, eventually becomes evidence of a new rule.
o States can prevent being bound by an emerging rule of customary IL by acting as a persistent objector, silence isn’t good enough.
o Customary IL is inferior to treaty for the parties of that treaty, but not for third parties.

Question 16

Art38(1)(b)

Answer 16

international custom, as evidence of a general practice accepted as law.
o Not all customs are customary IL.

Question 17

art38(1)(d)

Answer 17

• Art 38(1)(d); subject to the provisions of article 59, 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.
  o Not sources of law, that already exist. You can use this to determine what is a source of law.

Question 18

article 59

Answer 18

the decision of the court has no binding force except between the parties and in respect of that particular case.
 Unlike in common law systems, each case is only binding on the parties involved and aren’t binding precedents.
* This said, the ICJ has a tendency of citing itself as to the content of customary IL, even sometimes ignoring state practice.
 Judicial decision aren’t only those of international courts also of municipal courts, which also serve an additional purpose of constituting state practice.

Question 19

ius cogens

Answer 19

• Ius cogens/peremptory norms are above everything else, but really very few of those exist;
  o Wars of aggression, genocide/crimes against humanity/apartheid, slavery/torture/execution of juvenile offenders, piracy.
• A treaty prevails over customary law as between the parties to the treaty but not over non-parties.

Question 20

lex specialis derogat generali

Answer 20

o The special/specific rule prevails the general rule.
- Given that legislators/treaty-makers are assumed to know the customary international law, normally a treaty will be lex specialis over a customary rule.

Question 21

lex posterior derogat priori

Answer 21

o The latter rule overrides the earlier rule.

Question 22

What if a customary rule emerges after a treaty? is it lex specialis?

Answer 22

o If the customary rule is peremptory, it overrides the treaty.
o If NOT, but if the parties to the treaty contributed to its emergence, the customary rule can be seen as modifying/interpreting the treaty rule.
o Otherwise? Who knows.