PIL CONCEPTS

Question 1

What are the sources of international law?

Answer 1

Art. 38(1) ICJ Statute. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
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 civilized nations;
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.

Question 2

What are the elements of international custom?

Answer 2

The elements of international custom are:
1. general practice, characterized by uniformity and consistency, and
2. opinio juris sive necessitatis or recognition of that practice as as legally binding

SOURCE: Art. 38(1)(b) ICJ State; Libya/Malta Case of the ICJ

Question 3

What is the standard for state practice in customary law?

Answer 3

State practice as an element of customary law must be both extensive and virtually uniform (North Sea Continental Shelf Cases, ICJ par. 74)

Question 4

In what form may evidence of State practice take?

Answer 4

Evidence of state practice may be in the form of document recording statements by “high-ranking official political figures, sometimes indeed of the highest rank,” in particular “when they acknowledge facts or conduct infavorable to the state represented by the person who made them” (Military and Paralimitary Activities in and against Nicaragua, ICJ p. 41)

Question 5

What is opinio juris?

Answer 5

States’ belief that the practice is rendered obligatory by the existence of a rule of a law requiring it. (Nicaragua Case, ICJ pp. 108-109)

Question 6

What is the standard for opinio juris?

Answer 6

The act of the state must be carried out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it (North Sea Continental Shelf Cases par. 77)

Question 7

How is consent to be bound by a treaty expressed?

Answer 7

VCLT. Article 11. Means of expressing consent to be bound by a treaty.

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Question 8

When may a State be bound to a treaty by means of ratification, acceptance, or approval?

Answer 8

VCLT. Article 14. Consent to be bound by a treaty expressed by ratification, acceptance or approval.

1. The consent of a State to be bound by a treaty is expressed by ratification when:
   (a) the treaty provides for such consent to be expressed by means of ratification;
   (b) it is otherwise established that the negotiating States were agreed that ratification should be required;
   (c) the representative of the State has signed the treaty subject to ratification; or
   (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

Question 9

What is the interim obligation of a signatory state?

Answer 9

VCLT. Article 18. Obligation not to defeat the object and purpose of a treaty prior to its entry into force.

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Question 11

What is the standard for observance of a treaty?

Answer 11

VCLT. Article 26. “Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Question 12

May internal law be invoked as justification for failure to perform a treaty?

Answer 12

VCLT. Article 27. Internal law and observance of treaties.

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Question 13

General rule on non-retroactivity of treaties

Answer 13

VCLT. Article 28. Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Question 14

What is the territorial scope of treaties?

Answer 14

VCLT. Article 29. Territorial scope of treaties.

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

Question 15

What is the general rule of interpretation of treaties?

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Answer 15

VCLT. Article 31. General rule of interpretation

1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3.There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4.A special meaning shall be given to a term if it is established that the parties so intended.

Question 16

Discuss supplementary means of interpretation?

Answer 16

VCLT. Article 32. Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

Question 17

What is the general rule regarding third states?

Answer 17

VCLT. Article 34. General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent.

Question 18

When does a treaty right arise for a third State?

Answer 18

Article 36. Treaties providing for rights for third States

1.A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

2.A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.