Understanding Sources of Public International Law

Sources of Public International Law Introduction

Introduction- Notion The term source of law may mean different things. It may refer to either historical, ethical, social, or other bases for a legal rule, or it may refer to legal rules as such. The notion will be used here in the latter sense.

Art. 38 of the Statue of International Court of Justice (ICJ) 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Hierarchy of sources of International Law 1. Primary sources: treaties, customary rules, unilateral acts, general principles ; 2. Secondary sources: binding decisions of international organizations, judicial decisions based on principle of equity; 3. Subsidiary sources: other judicial decisions, doctrine.

Sources of International Law Treaties and conventions- Nuclear Test Ban Treaty; International Custom- prohibition of crimes against humanity; General Principles of Law- lex specialis derogat legi generali; Subsidiary Sources of judicial decisions and legal publications- ICJ CJEU cases, Brownlie textbook on Principles of Public International Law, Yearbooks of International Law.

Hierarchy? Treaties and custom are equal, subsequent treaty can displace previous custom, subsequent custom can change treaty; Exception is jus cogens- non-derogable; Principles below treaties and custom, gap fillers, natural law sources, rules common to all legal systems, principle of equity, general principles of international law.

Hierarchy? Article 38 does not take into account the evolution of international law; In practice, judicial decisions have more weight that writing publicists; Reference to civilized nations is problematic; Jus cogens is not addressed; Act of IOs are not addressed. Does not reflect the importance of non-binding sources.

Other sources of law Unilateral acts of State, such as recognition; Resolutions of International Organisations(IOs).

Treaties

Introduction The Vienna Convention on the Law of Treaties 1969 (VCLT) was negotiated during the UN Conference on the law of Treaties at Vienna in 1968-1969. It was opened for signature on 23 April 1969 and entered into force on 27 February 1980. The law of treaties is a body of rules which provides a definition of a treaty, and deals with matters relating to the conclusion, entry into force, application, validity, amendment, modification, interpretation, suspension and a termination of a treaty. It can be said that the law of treaties plays, in international law, a role similar to that played by the law of contract in municipal law.

Fundamental Principles of the Law of Treaties The principle of free consent It means that a State cannot be bound by a treaty to which it has not consented, however there are some exceptions to this rule. A State may express its consent in various forms (Article 11).

Fundamental Principles of the Law of Treaties The principle of pacta sunt servanda (agreements must be kept) It is embodied in Article 26 VCLT which states that: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. The ICJ in the Case Concerning Gabcikovo-Nagymaros Project stated, that Article 26 combines two equal elements:the principle of pacta sunt servanda and the principle of good faith. It his principle applies only to the treaties which are in force.

Fundamental Principles of the Law of Treaties The principle of good faith Under this principle States are required to comply with binding obligations imposed upon them by international law, irrespective of whether such obligations derive from treaties, customary rules, or any other source of international law. This principle is all encompassing as it even imposes obligations on a State in the pre-ratification stage.

The Definition of a Treaty under the VCLT Article 2 (1)(a) 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 in two or more related instruments and whatever its particular designation. A treaty may be described in a multitude of ways, as was stated by the ILC. The names such as convention , protocol , charter , pact , agreement , concordat , or joint communiqu .

The Definition of a Treaty under the VCLT To qualify as a treaty, the agreement must satisfy the following criteria: It must be a written instrument (Article 3); The parties must be States (Article 6); It must be governed by international law. There are groups of international agreements which fall under national law, e.g. the purchase of property, or concessions agreements. It must be intended to create legal obligations, it must be legally binding/intention to be bound.

Pactum de Contrahendo, Pactum de Negotiando It is a binding legal instrument under international law by which contracting parties assume legal obligations to conclude or negotiate future agreements. These concepts relate to obligations to reach an agreement and to negotiate with a view of reaching an agreement. These obligations often arise from an existing treaty, which binds the parties to negotiate and, as is the case in pactum de contrahendo, to enter into further agreements.

Formulation of Treaties States may adopt any procedure they choose to bring a legally binding agreement into existence between them. However, in the absence of any other agreement, the elaborate procedures set out in the VCLT apply; these procedures reflect the practice which had developed between States before the codification of the law in the VCLT.

Formulation of Treaties Broadly, this procedure may be divided into two parts. First comes the procedure of negotiation and adoption of the text of a treaty, and 2. Secondly the formal procedure whereby States express their consent to be bound by that text. This, it may be observed here, generally but not invariably, involves a two-step procedure, consisting of first, the signature of the treaty, and second, its ratification. 1.

Conclusion of Treaties Negotiation This is carried out by the accredited representatives of the States. Article 7(1) provides that it is someone equipped with an instrument of full powers or a person who, from normal practice appears to have such powers. Article 7(2) indicates three categories of persons who are deemed to have full powers : Heads of State, Heads of Government and Ministers for Foreign Affairs; Heads of diplomatic missions; Representatives accredited by States to an international conference or to an international organization or one of its organs.

Conclusion of Treaties Adoption of the text of a treaty It is the first stage of the conclusion of a treaty. Article 9 provides: 1)the adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2; 2) the adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.

Conclusion of Treaties Authentication of the agreed text By authentication the parties agree that the definitive text of the proposed treaty is correct and authentic and not subject to alteration. The text of a treaty is established as authentic and definitive: by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

Conclusion of Treaties Consent to be bound Article 11 provides: 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.

Entry into force Conditions for entry into force are normally specified in the treaty itself. Otherwise, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States (Article 24).

Deposit A depository is designed by the contracting parties to a treaty. He is the custodian of the treaty and performs administrative tasks relating to it. His functions and competences are set out in Articles 76 to 80.

Registration The reason for registration and publication of a treaty is to ensure transparency in the conduct of international relations. Article 102 of the UN Charter provides: every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. However, failure to register a treaty has no effect on its validity.

Registration Article 102 was indented to prevent States from entering into secret agreements without the knowledge of their nationals, and without the knowledge of other States, whose interests might be affected by such agreement. Secret diplomacy was condemned by the League of Nations as it was felt that secret agreements were one of the causes of World War I. It is to be noted that secret agreements are not unlawful and although they are disapproved of and difficult to conceal, they still exist.

Publication Subsequent to registration, a treaty will be officially published in the UN Treaty Series, so that anyone can consult it.

Application of a treaty In application of a treaty, three aspects are of interest: 1. Territorial application. In the absence of any territorial clause or other indication to the contrary on the part of contracting parties, a treaty is presumed to apply to all territories for which the contracting States are internationally responsible (Art. 29);

Application of a treaty 2. Conflict between treaties. It can be resolved as follows: If one of the treaties violates a rule of jus cogens, the treaty is invalid; If a treaty is in conflict with Article 103 of the UN Charter, its provisions which are incompatible with the UN Charter are void; if a treaty contains a conflict clause, it will indicate which treaty is to be applied (Art. 30(2); if treaty contradict each other and neither contains a conflict clause, Articles 30 (3) and (4) applies. This provision endorses the lex posteriori maxim: a later treaty supersedes an earlier treaty and the lex specialis maxim: a specific treaty supersedes a general treaty.

Application of a treaty 3.Application of a treaty to a third party. The fundamental principle is that a treaty applies only between the parties to it and thus has no effect on a third (Art. 34) . However, there are the following exceptions to that principle: If a treaty imposes an obligations on a third party, that treaty provisions will become binding on the third party only if that provision contains a rule of customary law; If a treaty confers a right on a third party, that party must consent to it.

Amendment Article 39 provides that A treaty may be amended by agreement between the parties . If all parties agree to the amendment no difficulty arises.But in many multilateral treaties it may not be possible to obtain unanimous agreement to a proposed amendment. Many treaties contain provisions for an amendment procedure. In case where a treaty contains no reference to amendment, Article 40 is of assistance.

Modification This occurs where a number of parties the treaty formally agree to modify the effects of a treaty amongst themselves, while continuing to be bound by the treaty in their relations with the other parties. This matter is covered by Article 41.

Interpretation Rules of interpretation are contained in Articles 31 and 32. Article 31(1) provides that: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . Article 31(4): A special meaning shall be given to a term if it is established that the parties so intended .

Termination and Suspension of Treaties The principles of pacta sunt servanda and of good faith entail that a State cannot release itself from its treaty obligations whenever it wishes. However, there are circumstances where suspension or termination of a treaty is justify. The difference between suspension and termination is that: When a treaty is suspended it is still valid but its operation is suspended temporarily. When a treaty is terminated it is no longer in force as it has ended its existence.

Termination and Suspension of Treaties To be effective, termination or suspension may only take place as a result of the application of the provisions of the treaty itself or the VCLT (Art. 42 (2)). Most treaties contain provisions on termination, and termination provisions are usually closely linked to those on the duration of the treaty.

Termination of a treaty- consequences According to Article 70, the termination of a treaty releases the parties from any obligation further to perform the treaty, from the date when such denunciation or withdrawal takes effect (ex nunc). Ex nunc is a legal term derived from Latin, and means "from now on".

Suspension the treaty- consequences According to Article 72, the suspension of the operation of the treaty, releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension.

International Custom

Introduction Article 38 (1)(b) of the ICJ Statue, defines international custom, as evidence of a general practice accepted as law. A customary rule requires the presence of two elements: 1. An objective element: a relatively uniform and constant State practice, and 2. A psychological element: the subjective conviction of a State that it is legally bound to behave in a particular way in respect of a particular type of situation. This is referred to as the opinio juris sive necessitas.

Introduction Custom may be either general or regional. General customs are binding upon the international community as a whole. Local and regional customs apply to group of States or just two States in their relations inter se. Local customs may supplement or derogate from general customary international law.

The objective element This refers to what a State does with regard to a particular matter and what its organs such as heads of State, foreign ministers, other ranking officials, its legislature or its judiciary say with regard to a particular matter. It is clear that major inconsistencies in practice will prevent the creation of a rule of customary international law. The complete uniformity is not required and minor inconsistencies will not prevent the creation of a customary rule provided that that is substantial uniformity.

The subjective element To assume the status of customary international law the rule in question must be regarded by States as being binding in law, i.e. that they are under a legal obligation to obey it. The customary rules are simply based upon a consistent practice of States accompanied by feeling of legal obligation.

The Relationship between Treaties and International Custom The relationship between treaties and customary international law is complex. They co-exist, develop each other and, sometimes, clash. If there is a clash between them then, because they are of equal authority, the one which is identified as being the lex specialis will prevail.

General Principles of International Law

Introduction Article 38 (c) of the Statue of the ICJ refers to the general principles of law recognized by civilized nations. These principles are common to several national legal systems and they are appropriate from the point of view of international law. Some examples: the principle that a breach of an obligation entails an obligation to make reparation; the principle of res judicata; the principle of estoppel; the principle of the admissibility of circumstantial evidence.

Judicial Decisions

Article 38(1)(d) of the Statue of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law. Judicial decisions are not, therefore, a formal source of law. However, they clarify the existing law on the topic and may, in some circumstances, create a new principle in international law. They can also be considered evidence of State practice. Precedent has no binding authority in international law.

The Writings of Publicists

Article 38 (1) (d) directs the ICJ to apply the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. They constitute evidence of customary law and play a substantial role in developing new rules of law.

Secondary Law of International Governmental Organisations (IGOs)