Week 4&5: Law of Treaties

Question 1

What happens when a state doesn’t conform to a customary law?

Answer 1

1. If they are condemned
2. If they tried to hide it

Shows it is a customary law

Question 2

What can treaties sometimes do?

Answer 2

Take a pre-existing norm and put it into writing for clarity. Other parts can be added too

Question 3

Can treaties be a source of international law?

Answer 3

Yes, as per Monte Video convention. Only meant for Latin America but nearly all states rely on it without being signed onto it

Question 4

What is the rule?

Answer 4

Whether or not the article is written to create a general rule, a norm-creating treaty. Then state practice and opinio juris.

Question 5

What for opinio juris?

Answer 5

Many states signed on or not?

Public statements or criticism of other states when they don’t follow it?

Question 6

What about the level of ratification?

Answer 6

Nearly all states signed on?

The rights of the child convention, not decisive in deciding customary law but good evidence

Question 7

What is the process of deciding what customary law is?

Answer 7

Inductive

Question 8

Are states obliged to submit to a court?

Answer 8

No, unless they have handed away their right

Question 9

Can you sign a treaty that is contrary to customary law?

Answer 9

Yes as long as it’s not jus cogens

Question 10

What is an international organisation?

Answer 10

A legal person in international law that is created by states through treaties

Question 11

Example of this?

Answer 11

The United Nations

Question 12

What are they?

Answer 12

A partial legal person, a derivative of the of the personality of the states involved and the treaty it is created by

Question 13

Can international organisations create customary law?

Answer 13

Most states agree that they cannot make law by their own practice

Question 14

What exception?

Answer 14

If the treaty says they can make legal obligations they can. Can’t change custom

Question 15

What can they do?

Answer 15

1. Vote on resolutions
2. Give opinio juris and state practice

Can contribute to customary law progression

Question 16

What is a resolution?

Answer 16

Not a creation of law but can add to the progression of law

Question 17

What can the UN do?

Answer 17

Create legal obligations due to the treaty

Question 18

What can resolutions have?

Answer 18

Norm creating character from acceptance from the other states

Question 19

What about unilateral acts?

Answer 19

France v Australia: unilateral promise held bc

1. Came from the president, state representative
2. Clear enough that it can be taken as obligation

Question 20

What comes of this?

Answer 20

Diplomats avoid being categorical, use treaties instead

Question 21

What is a general principle?

Answer 21

If domestic norms are found in so many places, it can be seen as a general principle. Relatively few exist

Question 22

What is soft Law?

Answer 22

The term soft law is used to denote agreements, principles and declarations that are not legally binding

Question 23

What is hard law?

Answer 23

Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court.

Question 24

What is the big part for treaty law?

Answer 24

The Vienna Convention on the law Of treaties 1969

Question 25

What is it

Answer 25

Gone from convention to customary international law

Question 26

What is a treaty?

Answer 26

An agreement concluded between States in written form and governed by international law

Question 27

Is it an umbrella term?

Answer 27

Yes, split into things like charters

Question 28

How do you make a treaty?

Answer 28

Meeting of two or more states or representatives of states that have authority to negotiate

Question 29

Who has authority?

Answer 29

1. 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

Question 30

As per article 2, who are these people?

Answer 30

Head of state, heads of government and ministers for foreign affairs

Question 31

Once a treaty is agreed what happens?

Answer 31

Negotiations are concluded by the adoption of the text. Then express formal consent to the treaty.

Question 32

How can you do this?

Answer 32

As per article 11:

1. Signature
2. Exchange of instruments
3. Ratification
4. Acceptance
5. Accession

Question 33

What is the signature?

Answer 33

An agreement to observe the treaty and act in good faith.

Question 34

What is ratification?

Answer 34

A process by which the competent authorities express their consent to be bound by a treaty

Question 35

What is the 5 step summary?

Answer 35

1. Negotiation between relevant representatives from states
2. Adoption of text
3. Express formal consent of treaty (rat oft)
4. Becomes part of domestic law
5. Treaty enters into force

Question 36

What do some treaties require?

Answer 36

Need a certain amount of ratifications from different states to be deposited. Some states states remain only signatory states and do not ratify

Question 37

What is accession?

Answer 37

Treaty already in force, and uninvolved state wants to become bound by treaty. Only possible where condition for accession included

Question 38

What is provisional application?

Answer 38

If state want treaty to apply straight away it can become applied before the treaty comes into force.

Question 39

What does article 25 state?

Answer 39

Treaty or part of treaty can come into force if:

1. The treaty itself so provides
2. Or negotiating states have in some manner agreed

All states must agree to this