Unit 2 - Sources of International Law

Question 1

What are the sources of Public International Law ?

Answer 1

• Treaties or conventions.
• Custom.
• General principles of International Law.
• Judicial decisions as well as writings of most highly qualified publicists.

Article 38 of the ICJ.

Question 2

What are some other sources of International Law ?

Answer 2

• UN General Assembly.
• UN Security Council.

Question 3

Is their a hierarchy among these sources ?

Answer 3

• Article 38 does not propose a hierarchy among these sources.
• Contemporary International Law recognizes a form of hierarchy, such as the concept of jus cogens norms, which are peremptory norms that hold a higher status than other rules of International Law and cannot be derogated from.

Question 4

Discuss the VCLT scope of application.

Answer 4

• Applies between States (Article 1).
• It does not apply between two or more international organizations, or to unwritten international agreements (Article 3).
• A treaty does not create either obligations or rights for a third State without its consent (Article 34).

Question 5

Why are treaties important ?

Answer 5

• 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 6

What is the definition of a treaty ?

Answer 6

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.

Article 2(1)(a) of VCLT.

Question 7

What are the formal requirements for the conclusion of a treaty ?

Answer 7

• 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?

Golden questions.

Question 8

Who can sign a treaty ?

Answer 8

• Head of State, Head of Government, Minister of foreign affairs.
• Head of diplomatic missions.
• Representatives accredited by States to an international conference or to an international organization or one of its organs.

Article 7 of VCLT.

Question 9

Discuss express consent.

Answer 9

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 10

Discuss the registration of treaties.

Answer 10

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.

Article 80 of VCLT.

Question 11

Discuss the observation of a treaty.

Answer 11

• The binding nature of treaties lies 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.
• A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Question 12

Discuss reservation to treaties.

Answer 12

• A reservation is ‘a unilateral statement made by a state which purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that particular state.
• 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 13

What specific factos should be taken into account regarding reservations ?

Answer 13

• Where a treaty prohibits reservations.
• Where a treaty provides only for specified reservations.
• Where the reservation is incompatible with the object and purpose of the treaty.

Question 14

Does a State need the consent of all the other States involved for a reservation ?

Answer 14

• Traditional rule is that reservations are to be made with the consent of all other States involved.
• In terms of Article 20(1) if a treaty explicitly states that reservations are allowed, then the seserving State does not need consent from all the other States involved.
• In terms of Article 20(2) if a treaty or its negotiating States make it clear that the treaty needs to be applied in its entirety to be effective, then the reserving State would need consent from all other States involved.

Question 15

What is the difference between a reservation and interpretative declaration ?

Answer 15

• Reservations are statements by a State or international organization that modify the legal effect of certain treaty provisions, allowing them to exclude or alter the application of those provisions.
• Interpretative Declarations are unilateral statements by a State or international organization clarifying the meaning or scope of a treaty or its provisions without altering its legal effect.

Question 16

Discuss the invalidity of a treaty.

Answer 16

• A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’.
• No derogation is permitted.
• Can be modified only by a subsequent norm of general international law having the same character.
• If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Article 53 of and 64 of the VCLT.

Question 17

Discuss the termination or withdrawal of a treaty.

Answer 17

The termination of a treaty or the withdrawal of a party may take place: in conformity with the provisions of the treaty; or at any time by consent of all the parties after consultation with the other contracting States.

Article 54 of VCLT.

Question 18

What is essential to determine the existance of a rule of custom ?

Answer 18

It is necessary to ascertain whether there is general practice (usus) that is accepted as law (opinio juris).

North Sea Continental Shelf case.

Question 19

What is customary International Law ?

Answer 19

• Consists of rules that derive from the consistent practice of States followed out of a sense of legal obligation or the belief that those rules are legally binding.
• Unwritten, universally applicable, evolves over time.

Question 20

How long should a State practice continue to qualify as usus ?

Answer 20

• No rigid time element, depends upon circumstances of each case.
• Duration not the most important component of state practice.
• 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.

Anglo-Norwegian Fisheries case.

Question 21

Discuss opinio juris.

Answer 21

• The belief that states are following a practice because they consider it to be a legal obligation.
• The States concerned must feel that they are conforming to what amounts to a legal obligation.

North Sea Continental Shelf case.

Question 22

What serves as evidence of opinio juris ?

Answer 22

• In terms of the Nicaragua case, the willingness of states to enter into and comply with treaties indicates that they believe in the legal obligations set out in those agreements.
• In terms of the Nuclear Weapons Case, consistent support for resolutions can show that States view the practice as mandatory under International Law.

Question 23

What must be considered to determine if a practice and its associated opinio juris has become customary International Law ?

Answer 23

• Widespread and representative participation.
• There is no rigid numerical threshold.
• Majority participatiom.

Question 24

When is a State not bound by a rule of custom ?

Answer 24

• If a state refuses to consent to the new norm/rule, , then the State will not be bound by it (persistent objector rule).
• If a state can prove that it tacitly or expressly opposed a rule of customary law during its formation, then it is not bound by that rule.

Question 25

What are the key elements of the persisent objector rule ?

Answer 25

• Consistent objection.
• Clear communication.
• Timing.

Question 26

What is the relationship between treaty and customary International Law ?

Answer 26

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

Question 27

What is jus cogens ?

Answer 27

• Peremptory norm of general international law.
• A norm and is accepted and recognized by the international community of States as a whole.
• No derogation is permitted.
• Can be modified only by a subsequent norm of general international law having the same character.

Question 28

Discuss the nature of jus cogens.

Answer 28

• Reflect and protect fundamental values of the international community.
• They are universally applicable and are hierarchically superior to other rules of International Law.

Question 29

What are
erga omnes obligations ?

Answer 29

• ICJ emphasized that certain obligations are owed “towards the international community as a whole” and are distinct from obligations a State owes to another State.
• Any State can invoke the responsibility of another State for the breach of such obligations, even if it is not directly affected by the violation.

Barcelona Traction case.

Question 30

What is the nature of obligations erga omnes ?

Answer 30

• Universally applicable.
• Non-derogable.
• Collective responsibility.