Sources of International Law

Question 1

Article 38(1) of the Statute of the ICJ

Answer 1

The Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a) international conventions
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) judicial decisions and the teachings of the most highly qualified publicists

Question 2

Definition of a treaty

Answer 2

A treaty is an international agreement concluded between States in written form, and governed by international law. It is only binding on the states who consent to be bound by the treaty [Art 2 of the Vienna Convention].

Question 3

Requirements for a valid treaty

Answer 3

a) the parties
b) intention
c) consent
d) registration

Question 4

Elaborate more on a) the parties

Answer 4

Sovereign states have full treaty-making capacity.

Question 5

Elaborate more on b) intention

Answer 5

1) the parties must have intended to create legal obligations
2) states may decide that an agreement is to be decided by municipal law
3) a unilateral declaration by a state may also give rise to binding international obligations

Question 6

Elaborate more on c) consent

Answer 6

The parties to a treaty must consent to the same provisions. A state is only bound by a treaty once it has given its consent to be bound.

1) partial consent
2) modes of expressing consent
3) entry into force

Question 7

Definition of a reservation

Answer 7

A reservation is a unilateral statement made by a state when signing, ratifying, accepting, approving or acceding to a treaty, whereby a state purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state [Art 2(d) of the Vienna Convention].

Question 8

Definition of a declaration

Answer 8

A statement made by a state when entering a treaty to indicate how they intend to interpret and apply the instrument.

Question 9

Definition of a derogation

Answer 9

Permits a party to a treaty to explicitly depart from their obligations for a specified period of time under certain circumstances e.g. during a state of emergency.

Question 10

Requirements for a reservation

Answer 10

A state does not have to consent to all of the terms of a particular agreement. They can make a reservation, unless [Art 19 of the Vienna Convention]:

i) the treaty explicitly prohibits them
ii) the treaty provides that only certain reservations may be made
iii) the reservation in question is incompatible with the object and purpose of the treaty

Question 11

What is the effect of a valid reservation on bilateral treaties?

Answer 11

A reservation operates as a rejection of the treaty, together with the counter-offer of another treaty. If the other party does not accept the reservation, no treaty is produced. If the other party does accept the reservation, then the treaty comes into force subject to the reservation.

Question 12

What is the effect of a valid reservation on multilateral treaties?

Answer 12

Three questions were answered in the Crime of Genocide case:

1) Can the reserving state be considered to be a party to the convention if other states oppose its reservation? YES, but only if the reservation is compatible with the object and purpose of the Convention.
2) Can an objecting state to a reservation which it considers to be incompatible with the object and purpose of the Convention, in fact consider that State to not be a party to the Convention? YES
3) Can an objection to a reservation be made by a signatory, or a party entitled to sign, that had not yet ratified the Convention? NO, signatories can only object to a reservation upon ratification. Until that moment, the signature is merely a notice of the attitude of the State.

Question 13

What is the effect of an invalid reservation to a treaty?

Answer 13

1) either the state is bound by the whole treaty, because the invalid reservation falls away, or
2) the reserving state is not considered to be a party to the treaty, because the state would not have signed the treaty if they knew that they could not get the reservation

Question 14

What are the various modes of expressing consent to a treaty?

Answer 14

[Art 11 of the Vienna Convention]:

• signature
• exchange of instruments constituting a treaty
• ratification
• acceptance
• approval on accession (joining after the fact)

Question 15

What did the case of Cameroon v Nigeria hold, with respect to consent?

Answer 15

A signature alone can cause a treaty to come into immediate force, if that is what the parties have agreed to. The test is: what did the parties intend? Constitutional rules cannot preclude this effect, unless it has been publicly displayed that when signing a treaty, a head of state cannot hold their state to the treaty.

Question 16

When does a treaty enter into force?

Answer 16

If the state signed the treaty but has not yet ratified it (and it is subject to ratification), they are not full parties to the treaty and thus owe a much more limited obligation. They are obliged to refrain from acts that would be contrary to the purpose and objective of the treaty. Entry into force may be delayed to give time to parties to adjust their domestic laws and policies to meet the demands of their international obligations.

Question 17

Elaborate more on d) registration

Answer 17

Unregistered treaties are still valid, but to be valid before an organ of the UN, such as the ICJ, treaties need to be registered with the UN Secretariat [Art 80 of the Vienna Convention].

Question 18

What are ius cogens?

Answer 18

This is a body of overriding rules of international law which states are always bound to observe. If a treaty does not conform to these rules it is invalid to the extent of the conflict [Art 53 of the Vienna Convention].

Question 19

What does Article 103 of the UN Charter say?

Answer 19

In the case of a conflict between a member’s obligations under the Charter and an obligation under any other international agreement, the Charter obligation prevails.

Question 20

Who are the persons responsible for negotiating treaties?

Answer 20

Heads of state, government and ministers of foreign affairs are considered to be representatives of their states. All treaties signed will be binding, unless the other parties clearly knew that the head of state was acting in breach of municipal law [Art 7-8 of the Vienna Convention]. In South Africa, the President and the National Executive have the power to negotiate and sign international treaties [S 231(1) of the Constitution].

Question 21

What form must a treaty take?

Answer 21

There is no specific form for treaties. They may be written or oral. However, if it is to be governed by the Vienna Convention, it must be in writing.

Question 22

When can a state avoid an obligation to a treaty?

Answer 22

In instances of:

a) fraud and corruption
b) coercion and unequal treaties
c) error
d) provisions of internal law

Question 23

Elaborate more on a) fraud and corruption

Answer 23

A defrauded state may repudiate a treaty. Similarly, corruption of a state’s representative during the negotiations is a ground for avoiding a treaty.

Question 24

Elaborate more on b) coercion and unequal treaties

Answer 24

Coercion on individuals in not allowed. However, political, diplomatic and economic coercion is considered permissible.

Question 25

Elaborate more on c) error

Answer 25

The treaty is considered valid in spite of a minor error, as long as the parties were ad item as to the object of the treaty. If an essential fact that was relevant to their obligations was left out however, then clearly they did not consent.

Question 26

Elaborate more on d) provisions of internal law

Answer 26

The fact that consent was given in violation of domestic law is largely irrelevant. However, if the violation was a manifest contradiction of a domestic rule of fundamental importance, then it may operate to invalidate consent.

Question 27

How can a treaty be revised?

Answer 27

Parties must consent to all changes that are made:

1) a de jure revision is an express amendment made by way of another treaty.
2) a de facto revision means that the parties to a treaty agreed tacitly to change some of its provisions. De facto revision is different to a waiver of past breaches - which relates only to the inaction of a state over a single breach

Question 28

What are the various ways in which a treaty may be terminated?

Answer 28

a) express agreement
b) disuse
c) implied right of denunciation or withdrawal
d) later treaty
e) retaliation
f) supervening impossibility of performance
g) fundamental change of circumstances
h) severance of diplomatic or consular relations
i) outbreak of war
j) separability of treaty provisions

Question 29

Elaborate more on b) disuse

Answer 29

This is a tacit agreement by the parties that they will no longer fulfil their treaty obligations. It must be distinguished from mere waiver of past or even present breaches of the treaty.

Question 30

Elaborate more on d) a later treaty

Answer 30

A later treaty dealing with the same subject matter as a previous treaty may terminate the latter either expressly or by implication.

Question 31

Elaborate more on e) retaliation

Answer 31

If a party commits a material breach of a treaty, the other party may retaliate by terminating the treaty or by suspending its operation in whole or in part. This does not occur automatically, but only if the aggrieved party elects to do so.

Question 32

Elaborate more on g) supervening impossibility of performance

Answer 32

If the destruction or disappearance of an object that was essential to carry out the treaty occurs, this may be a ground for parties ending the treaty.

Question 33

Elaborate more on g) a fundamental change of circumstances

Answer 33

This allows a party to terminate a treaty if the certain basic circumstances which existed at the time of entering into the treaty have radically changed, distorting the basis of the parties’ consent. This may not be invoked to cancel treaties establishing boundaries, nor may it be used by the party that caused the change through breach of its own treaty obligations.

Question 34

Elaborate more on h) severance of diplomatic or consular relations

Answer 34

This does not affect treaty obligations, unless the existence of those relations is indispensable to application of the treaty.

Question 35

Elaborate more on i) outbreak of war

Answer 35

War used to terminate treaties between belligerent states. However, war is now arguably obsolete, and there is more to be gained by preserving multilateral law-making treaties, than abandoning them.

Question 36

Elaborate on j) the separability of treaty provisions

Answer 36

Partial denunciation or suspension of a treaty provision may be permissable in three situations:

1) if breach of a material provision entitles the aggrieved party to suspend part of the treaty
2) fraud or corruption
3) if the ground for suspension/termination relates to a specific provision.

That particular clause may be terminated or suspended, provided that the provision in question is separable from the rest of the treaty, it is not an essential basis for the parties’ consent, and continued performance of the remainder of the treaty would be equitable.

Question 37

Comment on the interpretation of a) customary law

Answer 37

• restrictive interpretation
• do not read in terms that are not mentioned in a list
• the specific terms must be interpreted in light of the more general term

Question 38

What are the general approaches to interpretation of treaties?

Answer 38

i) textual approach
ii) parties’ intention
iii) teleological or purposive approach

Question 39

What is i) the textual approach?

Answer 39

This is the common sense rule. Interpret the words according to their natural and ordinary meaning. No reference ought to be made to material outside the treaty unless it can be shown to be essential to do so. A party wishing to use a special meaning bears the onus of proving such.

Question 40

What is ii) the parties’ intention?

Answer 40

Words must be read in context. You can look to outside material to ascertain the intention of the parties. Furthermore, their conduct in applying the treaty is indicative of such.

Question 41

What is iii) the teleological or purposive approach?

Answer 41

This theory seeks to make a treaty work rather than fail. It looks at the purpose behind the document and seeks to give effect to that. This may lead to tribunals reading words into a treaty that actually alter its intended purpose.

Question 42

What was held in the South Africa in Namibia case?

Answer 42

Two members of the SC had not voted. However, in practice, abstention had come to represent a positive vote, in the sense that no objection to what was being proposed had been raised.

Question 43

What does the Vienna Convention say about interpretation of treaties?

Answer 43

Article 31 provides for a method for interpreting treaties, that 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 Convention continues to reflect customary international law, and therefore it can be used to interpret treaties which came into force before 1980.

Question 44

Can states impose treaty-specific interpretive regimes?

Answer 44

Treaties may include provisions detailing the interpretive regime to be used when interpreting statutes. The ICJ is not bound to these provisions, but it does lend them considerable weight.

Question 45

What happens when a treaty is written in more than one language?

Answer 45

Unless declared otherwise, if a treaty is in two or more languages, no version can be considered superior. However, the basic working language is usually preferred. In practice, the more limited interpretation which best reconciles the texts, will be favoured.

Question 46

What should happen when there is a potential conflict between obligations?

Answer 46

No one treaty’s obligations are morally superior to others. There is a doctrine of mutual supportiveness.

Question 47

What effect does a treaty have on third parties?

Answer 47

Treaties between two parties cannot create rights or duties for third parties [Art 34]. However, a third party may acquire obligations under a treaty, if the parties so intended and the third party accepts the obligations in writing. The same stands with respect to rights. Unless the treaty provides otherwise, consent is presumed until the contrary is proved.

Question 48

What is the definition of custom?

Answer 48

A pattern of behaviour (state practice) consistently observed over a period of time, thereby creating an expectation in the wider community that it will be repeated in the future. The sense of obligation arises from fact.

Question 49

What are the two elements of custom?

Answer 49

1. state practice

2. opinio juris

Question 50

Elaborate more on state practice

Answer 50

Proof of a rule requires evidence of the repetition of an act. One must look at the uniformity, generality and duration of the treaty.

Question 51

What was held in the Asylum case (Colombia v Peru)?

Answer 51

Can a rule informed by usage make it a binding custom? Sometimes, but in this case, Colombia cannot bind Peru.

Question 52

What was held in Nicaragua v USA?

Answer 52

Customary laws are still applicable even if they have been codified in texts, specifically the United Nations Charter. Non-intervention serves to protect the autonomy of states. For customary law to exist, the practice must be a settled one, accompanied by opinio iuris.

Question 53

What was held the Anglo-Norwegian Fisheries case?

Answer 53

The Norwegian government delimited its territorial sea by drawing straight base lines linking the outermost points of land along its coast, a method that was at variance with the established method. The ICJ found nothing in international law to bar this practice, and aside from Britain, other states had not objected to it.

Question 54

Elaborate more on the requirement of generality

Answer 54

The weight of various states must be considered. A custom can be made by a heavy state treading weightily, or by many light states treading lightly over many years.

Question 55

Elaborate more on the requirement of duration

Answer 55

The duration of a practice ought to be considered as well. Provided that the practice is proved to be consistent and general, the length of time need not be long.

Question 56

What is 2) opinio juris?

Answer 56

This is the state’s will that conduct becomes law (constitutive) or the recognition that certain conduct is required by law (declaratory). The ICJ has passed by the usus requirement when sufficient evidence of opinio iuris has been provided.

Question 57

What was held in the North Sea Continental Case?

Answer 57

Delimitation boundaries must be drawn up by agreement between all parties. State practice must be accompanied by a “general recognition that the rule of law or legal obligation is involved”.

Question 58

What are the methods for proving customary international law?

Answer 58

i) state practice
ii) judicial decisions
iii) writing of publicists
iv) General Assembly resolutions

Question 59

What was held in S v Petane?

Answer 59

If there is no preceding usus, a declaration cannot give rise to a custom, unless of course the declaration is itself treated as usus. One must look at what states have done on the ground, and not what they profess to do in an abstract and ideological realm.

Question 60

What are ius cogens?

Answer 60

These are the peremptory norms of international law — certain rules of IL that have always been considered so fundamental to the working of the system that states may not opt out of them. These are used when international law conflicts with basic human law, such as instances of genocide, slavery etc [Art 53 of the Vienna Convention].