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INTERNATIONAL LAW
Article 38 is regarded as an
authoritative
statement
of
the sources of international
law.
* INTERNATIONAL CONVENTIONS
International conventions are generally
referred to as treaties.
What is a treaty?
Art. 2 Vienna Convention on Law of
Treaties
1969
(VCLT
1969)
an
international
agreement
concluded
between states in written form and
governed by international law, whether
embodied in a single document or in two
or more related instruments whatever its
particular designation.
be
bilateral,
regional
and
The
decisive
factor
for
a
particular instrument to be a
treaty is whether the instrument
is
intended
to
create
international legal rights and
obligations between the parties.
A state cannot use inconsistency
with domestic law as an excuse
for failing to comply with the
terms of a treaty.
Treaty-making capacity:
Entities generally regarded as
having treaty making capacity :
states and international
organisation.
States: head of state /head of
government and minster of foreign
affairs.
Article
11
of
VCLT
1969
enumerates the ways in which a
state can express its consent:
By signature
By exchange of instruments
constituting a treaty
By ratification, acceptance
or approval
By accession
Signature
The formal/official affixing
names to the text of treaty
the states representatives.
The effect of signature of
treaty depends on whether
not the treaty is subject
ratification.
If the treaty is not subject
ratification or is silent
this point, the instrument
presumed to be binding.
of
by
a
or
to
to
on
is
Exchange of instruments
the consent of states to
be bound is expressed by
the exchange itself if the
instruments so provide or
if it is otherwise agreed
by
those
states
that
exchange should have that
effect.
Ratification
The approval of a treaty. Takes
place when the document of
ratification
is
exchanged
/
deposited.
Reasons for ratification: the
treaty
may
requires
legislation/
treaty
is
not
valid without consent on the
part of Parliaments.
Accession
the formal agreement of a
country
to
an
international treaty if it
is unable to sign the
treaty for a reason. E.g.
the dateline for signature
has passed.
Reservation to treaties a
unilateral statement made by a
state when signing, ratifying,
accepting, approving or acceding
to a treaty whereby it purports
to exclude or to modify the
legal
effect
of
certain
provisions of the treaty in
their application to that state.
TERMINATION OF TREATIES:
Material breach
Article 60(3) defines a material
breach as
(a)Repudiation of the treaty not
sanctioned
by
the
present
Convention.
(b)Violation
of
a
provision
essential to the accomplishment
of the object and purpose of the
treaty.
Supervening impossibility of
performance
Article
61
limits
this
ground to the permanent
disappearance or destruction
of an object indispensible
for the execution of the
treaty.
*CUSTOMS
Customary
international
law
refers to law which has evolved
from the practice of states.
Examples of rules of customary law:
-giving
foreign
diplomats
criminal immunity
-recognise the right of innocent
passage
-protecting non-combatants during
international armed conflict
State practice
Generality: Common and widespread
practice
among
a
significant
number of states is required.
Consistency: State practice must
be
reasonably
consistent
complete
consistency
is
not
required.
What
acts
practice?
constitute
State
Opinio juris
The practice must be accepted
by states as law.
Absence
of
protests
and
objections against a practice
tends to prove that it is
accepted as law.
Interaction
treaty :
between
custom
and
AS
organs
of
international
Soft laws
a body of guiding principles, standards, rules of
conduct or declarations of policy which are not
strictly binding law.
Can be found in treaty not yet in force or in
resolutions or declarations of international
organisations.
E.g
1992 Rio Declaration on Development and
Environment
Equity
General principle of fairness and justice.
In the North Sea Continental Shelf case:
the ICJ incorporated equitable principles
into its statement of a rule fro the
determination
of
continental
shelf
boundaries.
In Gulf of Maine case: the court stated that
the concepts of acquiescence and estoppel
in IL follow from the fundamental principles
of good faith and equity.