Week 4&5: Law of Treaties Flashcards
What happens when a state doesn’t conform to a customary law?
- If they are condemned
- If they tried to hide it
Shows it is a customary law
What can treaties sometimes do?
Take a pre-existing norm and put it into writing for clarity. Other parts can be added too
Can treaties be a source of international law?
Yes, as per Monte Video convention. Only meant for Latin America but nearly all states rely on it without being signed onto it
What is the rule?
Whether or not the article is written to create a general rule, a norm-creating treaty. Then state practice and opinio juris.
What for opinio juris?
Many states signed on or not?
Public statements or criticism of other states when they don’t follow it?
What about the level of ratification?
Nearly all states signed on?
The rights of the child convention, not decisive in deciding customary law but good evidence
What is the process of deciding what customary law is?
Inductive
Are states obliged to submit to a court?
No, unless they have handed away their right
Can you sign a treaty that is contrary to customary law?
Yes as long as it’s not jus cogens
What is an international organisation?
A legal person in international law that is created by states through treaties
Example of this?
The United Nations
What are they?
A partial legal person, a derivative of the of the personality of the states involved and the treaty it is created by
Can international organisations create customary law?
Most states agree that they cannot make law by their own practice
What exception?
If the treaty says they can make legal obligations they can. Can’t change custom
What can they do?
- Vote on resolutions
- Give opinio juris and state practice
Can contribute to customary law progression
What is a resolution?
Not a creation of law but can add to the progression of law
What can the UN do?
Create legal obligations due to the treaty
What can resolutions have?
Norm creating character from acceptance from the other states
What about unilateral acts?
France v Australia: unilateral promise held bc
- Came from the president, state representative
- Clear enough that it can be taken as obligation
What comes of this?
Diplomats avoid being categorical, use treaties instead
What is a general principle?
If domestic norms are found in so many places, it can be seen as a general principle. Relatively few exist
What is soft Law?
The term soft law is used to denote agreements, principles and declarations that are not legally binding
What is hard law?
Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court.
What is the big part for treaty law?
The Vienna Convention on the law Of treaties 1969
What is it
Gone from convention to customary international law
What is a treaty?
An agreement concluded between States in written form and governed by international law
Is it an umbrella term?
Yes, split into things like charters
How do you make a treaty?
Meeting of two or more states or representatives of states that have authority to negotiate
Who has authority?
- He produces appropriate full powers given by the state
2. State practice means that person is representing State for such purposes and to dispense with full powers
As per article 2, who are these people?
Head of state, heads of government and ministers for foreign affairs
Once a treaty is agreed what happens?
Negotiations are concluded by the adoption of the text. Then express formal consent to the treaty.
How can you do this?
As per article 11:
- Signature
- Exchange of instruments
- Ratification
- Acceptance
- Accession
What is the signature?
An agreement to observe the treaty and act in good faith.
What is ratification?
A process by which the competent authorities express their consent to be bound by a treaty
What is the 5 step summary?
- Negotiation between relevant representatives from states
- Adoption of text
- Express formal consent of treaty (rat oft)
- Becomes part of domestic law
- Treaty enters into force
What do some treaties require?
Need a certain amount of ratifications from different states to be deposited. Some states states remain only signatory states and do not ratify
What is accession?
Treaty already in force, and uninvolved state wants to become bound by treaty. Only possible where condition for accession included
What is provisional application?
If state want treaty to apply straight away it can become applied before the treaty comes into force.
What does article 25 state?
Treaty or part of treaty can come into force if:
- The treaty itself so provides
- Or negotiating states have in some manner agreed
All states must agree to this
