International Law: Summary of Unit 1 Fall 2006 Mr. Morrison

Fall 2006International Law2 Sources of International Law Found in Art. 38 of ICJ Statute Treaties Customary Law General Principles (limited) Judicial decisions and writings of scholars (as evidence of the above)

Fall 2006International Law3 Treaties General principle of pacta sunt servanda (treaties are to be observed) Binding on immediate parties only But see ahead on creating of new customary law Ratification is normally required for major treaties

Fall 2006International Law4 The Law of Treaties Now governed by Vienna Convention on the Law of Treaties Only applies to treaties between States (art. 3) Only applied to treaties that entered into force subsequent to its adoption (art. 4) Only applied as between parties to it But much of it has become customary international law

Fall 2006International Law5 Vienna Convention rules Pacta sunt servanda (art. 26) Treaty normally comes into effect upon Ratification (by sufficient number of States) Obligation not to defeat the “object and purpose of the treaty” pending its coming into effect (art. 18)

Fall 2006International Law6 Reservations Reservations can exclude operation of one or more provisions for a party to the treaty Cannot be contrary to object and purpose Cannot be made in bilateral treaties or those with small number of parties Cannot be made if treaty text prohibits or limits this (all art. 19)

Fall 2006International Law7 Objections to reservations Another State can object within 6 months either To the reservation or To the reserving State being a party at all (art. 20)

Fall 2006International Law8 Effect of reservations and objections to them If no objection—the “reserved” provision is not in effect for the reserving State If “simple” objection—same as above If “full” objection—the entire treaty is not in effect as between the reserving State and the objecting State (art. 21)

Fall 2006International Law9 Interpretation of Treaties General rule: “ordinary meaning, in context, and in light of object and purpose” (art. 31) Context limited to agreements and instruments made in connection with conclusion of the treaty Subsequent agreements and practice can also be taken into consideration

Fall 2006International Law10 Interpretation of treaties Supplementary means (including preparatory documents) can be taken into account only if meaning is “ambiguous or obscure” or if an ordinary meaning leads to an absurd result. (art. 32)

Fall 2006International Law11 Treaties and other rules of international law Treaty can modify other ordinary rules of international law as between parties Treaty cannot modify or abrogate “peremptory rules of international law” (art. 53)

Fall 2006International Law12 Customary international law Rules become part of customary law if they are— Observed by all [most] States Over a substantial period of time Out of a sense of legal obligation (opinio juris)

Fall 2006International Law13 Some modern issues of customary law Necessary time period is getting shorter Effect of approval or acquiesence in resolutions that recite that a rule already exists Coalesence of State practice around treaties may lead to more rapid establishment of those texts as customary law, even for non-signatories

Fall 2006International Law14 General principles Largely limited to procedural rules common to all legal systems

Fall 2006International Law15 “Soft law” A common practice is to enter into “non-binding obligations” or into obligations that say “each Party shall, to the degree that it deems feasible” [or the like], which indicates a direction, but not a specific obligation. Usually a stepping-stone to firmer obligations