Public International Law Week 2

Question 1

Positivism

Answer 1

Rules of law binding upon states emanate from their own free will. States act as authorities in making international law and make international law together.

Question 2

Voluntarism

Answer 2

Rules of law bind states emanate from their own free will, by being party to a treaty, accepting international law, following norms of international law, etc. When a state concludes a treaty voluntarily, it is an act of sovereignty.

Question 3

Consensualism

Answer 3

International law is based on state consent to the treaty.

Question 4

How to use the sources of international law in coming to a decision?

Answer 4

1) Go to the treaty (38(1)(a) ICJ Statute)
2) Go to customary International law (38(1)(b) ICJ Statute)
3) Go to general principles of law (38(1)(c) ICJ Statute)
4) Go to judicial decisions and writings of scholars (38(1)(d) ICJ Statute)

Question 5

Other sources of law outside of Art 38 ICJ Statute?

Answer 5

UNSC decisions (binding), UNGA decisions (not legally binding but can reflect CIL), unilateral declarations of states intending to pose an obligation.

Question 6

When does a treaty become binding upon a state (entry into force)?

Answer 6

Usually, once the state ratifies the treaty. However, can also state in the treaty that it is binding upon signature - this is used to circumvent parliament.

Question 7

Pacta sunt servanda

Answer 7

Art 26 VCLT - every treaty in force is binding upon parties and must be performed by them in good faith.

Question 8

Art 34 - 37 VCLT

Answer 8

Concerns treaty rights and obligations for third-states.

Question 9

Art 46 - 64 VCLT

Answer 9

Concerns invalidity of a treaty.

Question 10

Art 18 VCLT

Answer 10

Before the treaty enters into force, but during the process of ratifying/signing the treaty, the state(s) have an obligation not to act in a way that defeats the object and purpose of the treaty.

Question 11

Non-retroactivity of VCLT

Answer 11

Art 4 VCLT: The VCLT rules only apply to treaties concluded by States after entry into force of the Convention with regard to such States (as parties to the Convention). Hence, any treaty concluded before 1980 (when the VCLT became in force), the VCLT does not apply but rather must use CIL.

Question 12

Two elements of CIL

Answer 12

General practice - Material element
Opinio juris (accepted as law) - subjective element

Question 13

Criteria for general practice

Answer 13

Widespread, Uniform, Representative, Constant (WURC)
Repetition: it must be followed, used, applied repeatedly, consistently, and constantly.
E.g., Legislation of a state, what they have been doing physically, etc.
Essentially, states accept a certain custom when they engage in practice that is uniform in its behaviour and engage in practice over a period of time.

Question 14

Criteria for opinio juris

Answer 14

Renders relevant practice legal, as undertaken with a sense of legal obligation. It differentiates customary international law from rules of etiquette, morality, politically expedient behavior, etc.
E.g., statements of government, state conduct that shows it considers a certain obligation as legally binding, etc.

Question 15

What is the main purpose of general principles of law

Answer 15

Mainly used in the case of filling in gaps. If there is not convention nor CIL, then can use GPL to provide an answer or supplement Convention and CIL.
E.g., the principle of good faith - as mentioned in Art 2(2) UN Charter and other Court decisions is a general principle of law.

Question 16

Judicial decisions/doctrine

Answer 16

Subsidiary means made for the determination of the rule of law. Both national and international courts and tribunals can render decisions which we can use, but national court decisions are only useful if they apply international law.
Must use court decisions subject to Art 59 ICJ Statute - there is no stare decisis (precedence) in Court decisions.

Question 17

Primary sources of law

Answer 17

International conventions, customary international law, and general principles of law.

Question 18

Subsidiary sources of law

Answer 18

Judicial decisions, writings of legal scholars.

Question 19

What if there is a conflict of rules/obligations when applying the sources of law?

Answer 19

The later rule prevails over the earlier rule.
Special rule prevails over the general.
Superior law prevails over inferior law (e.g., Constitution > local law, etc.)

Question 20

Art 53 VCLT

Answer 20

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.

Question 21

What if there is a conflict between obligations under the Charter and obligations under any other international agreement?

Answer 21

Art 103 UN Charter: obligations under present Charter prevail.

Question 22

Elements of a treaty

Answer 22

Art 2(1)(a) VCLT: international agreement, between states, in written form, governed by international law, in a single instrument or two or more related instruments.

Question 23

Who has full powers to negotiate a treaty?

Answer 23

Art 7 VCLT: heads of state, heads of government, MFA

Question 24

Accession to the treaty

Answer 24

If you don’t ratify a treaty in a certain period of time, but still show consent to be bound, that is accession.

Question 25

Consent for treaty entry into force

Answer 25

Consent is a pre-requisite for entry into force of a treaty. Other pre-requisite can be in the treaty itself such as needing a number of ratifications for entry into force.

Question 26

Reservation to the treaty

Answer 26

Art 19 VCLT - a state is allowed to formulate a reservation during the process of the treaty. Prohibitions to reservation in the article.
Reservations can only be formulated when signing or consenting (ratifying) to the treaty.

Question 27

How to accept/object reservations to a treaty?

Answer 27

If a treaty allows a Court to handle it, then the Court is charged with interpreting and applying the treaty (and its reservations).
However, if there is not Court, then three options under Art 20 - 21 VCLT:
- Reservation is accepted by all other state parties
- If other state parties object to the reservation, then… either the treaty enters into force but provisions to which the reservation relates to does not apply to that state that makes the reservation or the treaty does not enter into force between the state formulating the reservation and the party(s) objecting the reservation.

Question 28

How to interpret treaties?

Answer 28

Art 31 - 33 VCLT:
- If it is clear, then no interpretation needed.
- If not clear, then can use grammatical (ordinary text), teleological (object and purpose), subjective (intention of founding fathers).

Question 29

Grounds for unilateral termination

Answer 29

Three grounds:
- Art 60 VCLT: prior material breach (another party violates the treaty first, but the violation must be essential to accomplishing the object and purpose of the treaty, and the state that wants to terminate the treaty must be specially affected).
- Art 61 VCLT: impossibility of performance (cannot reasonably be expected to perform an obligation under the treaty due to permanent disappearance or destruction of object indispensable for the execution of the treaty. If the impossibility is temporary, you can just suspend it.). Also see (2) - can’t invoke impossibility if it was due to your own actions.
- Art 62 VCLT: fundamental change of circumstances (change of circumstances not foreseen, circumstances constituted an essential basis to consent, radically transform extent obligations to be performed).

Question 30

Persistent objector

Answer 30

A state that persistently objects to a rule of CIL at the stage of its formation is not legally bound by it.

Question 31

Opinio juris and practice of especially affected states

Answer 31

The practice and opinio juris of especially affected states may bear more weight of the formation of CIL in that realm of law (e.g., nuclear weapon states practice and opinio juris carry more weight in nuclear CIL than non-nuclear weapon states).

Question 32

Omissions of states as general practice and opinio juris

Answer 32

Abstentions from actions by states may indicate the existence of a CIL in that realm of law

Question 33

SS Lotus

Answer 33

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

Question 34

North Sea continental shelf

Answer 34

How to differentiate continental shelf between countries (GE, NL, DE)
- Art 6 Convention on the Continental Shelf 1958
Issue: was the rule of equidistance to delimit continental shelf between countries applicable as Germany was not party to the Convention? Well, can’t use treaty on a third-party, so now must look at CIL.
A practice in a short period of time is not a bar to the formation of a rule of CIL. You don’t need decades and centuries for practice and opinio juris to be formed. The practice in question must be both extensive and virtually uniform, and there is no rigid time element for it to be considered CIL.
Equidistance has been practiced as a method of delimitation, but that was a matter of convenience as opposed to required by law. So, no opinio juris in this case as states did not feel they were legally required to use equidistance.
The belief of states that certain conduct is custom can be seen by a prohibited obligation, a prescribed obligation, or a permitted right.

Question 35

Norwegian fisheries case

Answer 35

Norway drew straight baselines around the islands off the coast and said everything within these baselines under Norwegian territory and thus have sovereignty over it. The UK complained about this as they wanted some islands too.
ICJ said: if a state persistently objects to a rule, it might be the case that the rule may not apply to that case. Hence, we accept the idea of persistent objection only in the phase of a development of a rule. When opinio juris and state practice are in development, and a state is consistently and constantly persisting, then perhaps it can work out for you – persistent objection to development of the rule only.
Once we determine that the rule exists, we don’t accept subsequent persistent objection

Question 36

Nuclear tests (Australia vs France)

Answer 36

Declarations made way of unilateral acts may have the effect of creating legal obligations. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.
Not all unilateral acts imply obligations. But, if a state may choose to take up a certain position in relation to a particular matter with the intention of being bound, the intention is to be ascertained by interpretation of the act. When states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.
Whether a statement is made orally or in form makes no essential difference for such statements made in particular circumstances may create commitments in international law. Thus, question of form is not decisive.
Thus, interested states may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.
Also, the sources of law under Art 38(1) ICJ Statute are not exhaustive as other sources of law exists such as UNSC decisions (legally binding), UNGA decisions (not legally binding but can reflect CIL), international organization decisions that impose obligations on states, and unilateral declarations of states.

Question 37

Nicaragua v USA

Answer 37

Rules of CIL determined by state practice (material element) and opinio juris (subjective element).
Court must satisfy itself that the existence of the rule in the opinio juris of states is confirmed by practice.
Basically, need both elements for establishing CIL.

Question 38

Legality of the Threat or Use of Nuclear Weapons

Answer 38

Substance of CIL must be looked for primarily in the actual practice (material element) and opinio juris of states (subjective element).
States which hold the view that the use of nuclear weapons is illegal have endeavored to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclear weapons by States since 1945 and would point to this as opinio juris.

Question 39

Qatar v Bahrain

Answer 39

Qatar and Bahrain had been negotiating on how to settle certain disputes regarding maritime delimitation. They did so with the mediation of the King of Saudi Arabia. At some point, the meeting minutes were made, the minutes were signed by both FO’s, and then the q was – was this a treaty? The meeting minutes showed that FO’s together made commitments. Q – are these legal commitments, because then this can be a treaty. The Court said that these minutes recorded legal commitments. One of the legal commitments suggested that the dispute could be settled by ICJ itself (establishing jurisdiction of the course). Qatar said it was a treaty and registered it with the UN 6 months after the minutes were signed and Qatar also sent falsified documents. into the record. Also in Qatar’s constitution, the FO could not sign the treaty anyways. However, new law came out that FO could do so.
Anyways, in the end this became a treaty. FO can sign anything.
Under international law, basically anyone with power can sign a treaty (for e.g., King of NL, MFA, etc.)
As noted by the Court: “minutes are not a simple record of a meeting but rather create rights and obligations in international law for the Parties and thus constitute an international agreement.”

Question 40

Gabickovo-Nagymoros

Answer 40

ICJ goes into termination of treaties under Art 60, 61, and 62 of VCLT.
Art 60: termination or suspension of the operation of a treaty as a consequence of its breach
Art 61: supervening impossibility of performance - requires permanent disappearance or destruction of an object indispensable for the execution of the treaty to justify termination on grounds of impossibility of performance
Art 62: fundamental change of circumstances - in Court’s view, prevalent political conditions leading to fundamental change of circumstances were not so closely linked to the object and purpose of the treaty that they constituted an essential basis of the consent of the parties and radically altered the extent of the obligations to be performed
In this case, court also applied that VCLT not applicable as the treaty between Hungary and CS was in 1977, before VCLT was ratified by both countries (non-retroactivity under Art 4 VCLT). Thus, only CIL rules applicable to 1977 treaty
Regarding state of necessity to terminate treaty, Court finds that even if a state of necessity exists, it is not a ground for termination of a treaty. It may only be invoked to exonerate form its responsibility a State which has failed to implement a treaty. Even if found justified, it does not terminate a treaty; the treaty may be ineffective as long as the condition of necessity continues to exists. As soon as state of necessity ceases to exist, duty to comply with treaty obligation revives.
Court is of the view that it is only a material breach of the treaty itself, by a state party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured State, but it does not constitute a ground for termination under the law of the treaties
Hungary by its own actions had prejudiced its right to terminate the treaty. Czechoslovakia did some shady shit, but as noted: one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him.

Question 41

ICJ Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

Answer 41

We need a criterion to decide if reservations are allowed. Court said: the genocide convention is a treaty concluded for humanitarian reasons and the crucial issue would be whether the reservation goes against the object and purpose of the treaty.
So, reservations are allowed as long as they do not go against the object and purpose of the treaty

Question 42

LeGrand case

Answer 42

Relationship of treaties and internal law: Art 27 VCLT

The case concerned foreign nationals which were on death row and the USA stated that they could not intervene due to the federal law being separate from national law. But it was stated that this could not impede the functioning of international law. You cannot use your own internal laws as a justification for failing to meet international obligations.

Question 43

General rule concerning interpretation of treaties under Art 31 VCLT

Answer 43

“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.”
- The text of the treaty must be presumed to be the authentic expression of the intentions of the parties (ILC 1966)
- All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. (ILC 1966)
Hence, when interpreting a treaty, there is no hierarchy of elements or interpretations but rather weightings of elements to the use of the interpretation.

Question 44

ICJ Asylum Case

Answer 44

State practice must be uniform and constant for customary international law to be determined by it.