Treaties & Other Agreements Flashcards
What are the traditional sources of international law? Why is this list seen as only a starting point?
Article 38 of the Statute of the International Court of Justice is the traditional starting point for identifying international law. Article 38 describes the law that the ICJ (International Court of Justice) is instructed to apply when resolving disputes.
It is only a starting point for two reasons: (1) It suggests that courts find international law in existing “sources” and apply it as appropriate to a particular dispute, rather than as a process of decision making, communication, or mask of political power. (2) Article 38 lists treaties and customs as distinct, but they are increasingly supplemented by other sources of law, including those not mentioned in article 38.
What does it mean to say that the ICJ is the principal judicial organ of the United Nations?
The ICJ resolves disputes between states and applies Article 38 of the UN Charter.
Article 38 of the Statute of the ICJ creates the court and permits the ICJ to issue advisory opinions at the request of the UN Security Council on “legal questions arising within the scope of their activities.”
What instruments address the legal basis of the ICJ?
The UN Charter and Article 38 Statute of the ICJ
What are the two main types of ICJ jurisdiction?
Contentious cases and advisory opinions
What are the various bases for contentious jurisdiction?
Which UN organs may request an advisory opinion from the ICJ?
UN Security Council (in the case of the Genocide Convention, the UN General Assembly).
The General Assembly may also authorize other UN organs or specialized agencies to request advisory opinions on “legal questions arising within the scope of their activities.”
Does Article 38 of the ICJ Statute contain an implicit hierarchy of sources? What are they?
International law also derives from lawmaking and standard-setting activities by international organizations, regional bodies, multinational enterprises, and non-governmental organizations.
Why might States and courts prefer treaties over custom and other sources of IL?
Treaties advance certain interests and values and, in exchange, accept some constraints on their own decision making.
States have powerful incentives to enter into treaties:
- States use treaties to achieve their mutually beneficial interests. They forsake short-term efforts to maximize their own power in favor of pursuing long-term goals that require them to work with other states.
- Treaties enable states to clarify their commitments and make them credible, including by establishing international institutions that states can use for these purposes.
- Charles Lipson: treaties raise the political costs of non-compliance . . . the more formal and public the agreement, the higher the reputational costs of noncompliance. The threat of loss of reputational capital promotes compliance, although it cannot guarantee it. Whether it succeeds depends on: (1) the immediate gains from breaking an agreement, (2) the lost stream of future benefits and the rate of the discount applied to that stream, and (3) the expected costs to reputation from specific violations.
What is soft law? Can you give an example of the range of instruments that may constitute soft law?
Soft law are norms of conduct understood as legally non-binding by those accepting the norms. Soft law may range from declarations of international organizations, industry codes of conduct, expert reports. Soft law is not enforceable by legal sanction but is framed by legal language.
What is the Vienna Convention on the Law of Treaties (VCLT)?
VLCT is often called the “treaty on treaties.”
It was negotiated through the International Law Commission (ILC) (an independent body of experts that operates under UN auspices and eventually adopted by states at an international conference in 1969).
VLCT has been widely ratified.
What, according to the VCLT, is the meaning of a treaty?
Article 2 of the VCLT: “a treaty is an international agreement concluded between States in written form and governed by international law.”
What other terms are used to describe binding commitments by States?
Treaties
What is the meaning of treaties under US law and is it the same as the meaning under the VCLT?
What are the three basic types of treaties?
(1) Bilateral
(2) Multilateral
(3)
What are the various ways a State may signify its intent to be bound by a treaty?
By signing a treaty, a state affirmatively consents to accept the text as adopted and intends to ratify it after completing any requirements in national law for ratification.
