Theme 2 - Sources of International Law

Question 1

Define ‘International Conventions’.

Answer 1

Article 38(1)(a) of the ICJ define it as a formal agreement between states, focused on the consent of states, that is written, and legally binding on contracting states.

Question 2

Define ‘International Customs’.

Answer 2

Article 38(1)(b) of the ICJ defines it as practices that states consistently follow out of a sense of legal obligation, consent of states, legally binding on all states, not written.

Question 3

Discuss the general principles of International Law.

Answer 3

Article 38(1)(c) of the ICJ defines it as gap filler for when there is no treaty rule, no rule of custom, and basic principles of law found in national legal systems, such as the principle of good faith.

Question 4

Discuss the judicial decisions as well as writings of the most highly qualified publicists.

Answer 4

Article 38(1)(d) of the ICJ defines it as subsidiary means for the determination of rules of law, judicial decisions used to interpret international law, writings and expert analysis and commentary by legal scholars to interpret international law.

Question 5

Are there other sources of Public International Law ?

Answer 5

• Resolutions of International Organizations.
• These are non-binding, but they play an important role in shaping, influencing and developing international law.
• They are often the first step towards the development of legally binding rules.

Question 6

Discuss the VCLT scope of application.

Answer 6

• Article 1 applies to treaties between States.
• Article 3 states it does not apply between two or more international organizations, or to unwritten international agreements.
• Article 34 states that a treaty does not create either obligations or rights for a third state without its consent.

Question 7

Why are treaties important ?

Answer 7

• Much of International Law is regulated by treaty.
• Treaties are a more direct and formal method of international law creation.
• They are predictable and certain (compared to custom).

Question 8

Define ‘treaty’.

Answer 8

Article 2(1)(a) of the VCLT defines a treaty as ‘an international agreement concluded between
states in written form and governed by international law, whether embodied in a single instrument or two or more related instruments, and whatever its particular designation.

Question 9

What are the formal requirements for the conclusion of a treaty (4 golden questions) ?

Answer 9

• Does the ‘document’ meet the elements of the definition of a treaty ?
• Who can sign a treaty ?
• Is there express consent to be bound by the treaty ?
• Is the treaty registered ?

Question 10

Who can sign a treaty ?

Answer 10

• Head of State.
• Head of Government.
• Minister of Foreign Affairs.
• Head of Diplomatic Missions.
• Representatives accredited by States.
• Any other person who produces full powers from the State.

Question 11

Discuss the ways in which consent of a state can be expressed.

Express consent to be bound by the treaty.

Answer 11

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 12

Discuss adoption.

Express consent to be bound by the treaty.

Answer 12

• The text of the treaty is formally agreed upon by states.
• Adoption does not create any binding obligations for the States involved.
• It is reached by:

1. Consensus;
2. Two-thirds majority;
3. A different rule.

Question 13

Discuss signature.

Express consent to be bound by the treaty.

Answer 13

• Signature by authorized person with full powers indicates a State’s initial consent to the treaty.
• If a treaty is subject to ratification, the signature does not establish a consent to be bound.
• North Continental Shelf case provides that a State that has signed but has not yet ratified a treaty is obliged to refrain from acts that defeat the object and purpose of such treaty.

Question 14

Discuss ratification, acceptance, and approval.

Express consent to be bound by the treaty.

Answer 14

• Ratification requires legislative approval (internal act of approval).
• States deposit their instruments (documents) for ratification, acceptance, or approval with a designated depositary.
• Upon ratification, acceptance, or approval, the State is legally bound by the treaty under international law.

Question 15

Discuss accession.

Express consent to be bound by the treaty.

Answer 15

• The process by which a State can become party to a treaty it has not signed.
• This is typically used for States that wish to become parties to a treaty after it has already been negotiated and signed by other States.

Question 16

Discuss the registration of a treaty.

Answer 16

After entry into force, the treaty must be
registered/transmitted to the Secretariat of the UN, otherwise, it cannot be used in any dispute before/of the UN organs.

Question 17

Discuss the observation of a treaty.

Answer 17

• The binding nature of treaties is at the very heart of international law and is derived from the principle of pacta sunt servanda.
• Every treaty in force is binding upon the
  parties to it and must be performed by them in good faith.

Question 18

List the process of treaties.

Answer 18

1. Negotiation, Adoption and Signature.
2. Ratification, Acceptance or Approval.
3. Depositing Instruments.
4. Entry into Force.
5. Registration.

Question 19

What is meant by the reservation of treaties.

Answer 19

The VCLT allows a state to refuse to be bound by a provision of a treaty it does not agree with, while consenting to be bound by the rest.

Question 20

Discuss the invalidity of a treaty.

Answer 20

• Treaties conflicting with a peremptory norm of general international law (jus cogens).
• A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.

Question 21

What is jus cogens.

Answer 21

It is a peremptory norm of General International Law accepted and recognized by the international community of states as a whole and from which no derogation permitted and which can only be modified by a subsequent norm of general
international law having the same character.

Question 22

What is the four criteria of jus cogens.

Answer 22

• Must have the status of general international law
• It must be accepted by the international community as a whole.
• It must be non-derogable.
• It may only be modified by a new norm having the same status.

Question 23

Discuss the nature of jus cogens.

Answer 23

• The reflect and protect fundamental values of the international community.
• Customary International Law is the most common basis for peremptory norms of general international law.

Question 24

What are the obligations erge omnes?

Answer 24

• Obligations that a state has towards the international community as a whole.
• They have universal applicability, are non-derogable and call for collective responsibility in their enforcement.

Question 25

Is there a distinction between erge omnes obligations and treaty obligations ?

Answer 25

• According to the Barcelona Tractions case there is a distinction between erga omnes obligations and treaty obligations.
• Erga omnes obligations are the concern of all states and all states can be held to have a legal interest in their protection.
• Treaty obligations are only of concern to the parties to such a particular treaty.

Question 26

Discuss the link between jus cogens and obligations erga omnes.

Answer 26

Many jus cogens norms to give rise to erga omnes obligations because of the nature and character of jus cogens norms, which often demand a collective responsibility in terms of their enforcement.

Question 27

Discuss Customary International Law.

Answer 27

Customary international law consists of rules that derive from the consistent practice of States followed out of a sense of legal obligation or the behalf that those rules are legally binding (usus
and opinion juris).

Question 28

Discuss usus.

Answer 28

• It is the uniform and consistent State practice.
• It can be physical practices, verbal acts, inaction.

Question 29

How long should state practice continue to qualify as usus?

Answer 29

• According to the Anglo-Norwegian Fisheries Case, there must be constant and sufficiently long practice but also that too much importance need not be attached to the few uncertainties or contradictions, real or apparent that may exist in practice.
• The Nicaragua Case also states that absolutely rigorous conformity with the rule is not required.

Question 30

What is the ‘big rule’ ?

Answer 30

• State practice is not customary international law, unless States accepted/regard it as Customary international law.
• This belief or acceptance is the opinion juris or mental element.

Question 31

Discuss opinion juris.

Answer 31

• It is the belief that states are following a practice because they consider it to be a legal obligation.
• According to the North Sea Continental Shelf Cases States concerned must feel that they are conforming to what amounts to be a legal obligation.

Question 32

Discuss evidence of opinion juris in terms of treaty participation.

Answer 32

• In the Nicaragua Case the ICJ looked at the behavior of States in treaties to assess whether they acted out of a sense of legal duty.
• The willingness of states to enter into and comply with treaties indicates that they believe in the legal obligations set out in those agreements.

Question 33

Discuss evidence of opinion juris in terms of General Assembly Resolutions.

Answer 33

• In the Use of Nuclear Weapons Case the ICJ examined how states voted on UN resolutions to determine if they believed their actions were legally required.
• Consistent support for resolutions can show that States view the practice as mandatory under international law.

Question 34

What is the Relationship between treaty law and customary International Law in terms of opinion juris?

Answer 34

• To determine if a practice and its associated opinion juris have become customary international law, it is not about a specific number of states.
• Instead, international law follows certain considerations:

1. Widespread and representative participation.
2. There is no rigid numerical threshold.
3. Majority participation.

Question 35

Discuss the rule regarding the persistent objector.

Answer 35

• If a State refuses to consent to the new norm/rule of Customary International Law, then the State will not be bound by it.
• If a State can prove that it tacitly or expressly opposed a rule of Customary International Law during the formation of the rule then it is not bound by that rule.

Question 36

What is the relationship between treaty and Customary International Law ?

Answer 36

• Sometimes treaties codify existing rules of custom.
• A treaty may clarify a rule of custom that emerged prior to conclusion of the treaty.