Download What is international law?

LAW 221:
INTERNATIONAL
LAW
Dr. Başak Çalı
• Sources of international law
• International treaties – Part I
Outline
A) What is international law?
B) What is international law on a given issue?
Two distinct, but
interrelated questions
• The second question begs an additional question:
• What are the sources of international law?
Sources of IL
• International treaties
• International custom ( or customary international law)
• General principles of international law
Formal sources of
international law
• Article 38
• 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.
• When I ask what is the law on X, you need to ask,
1) for whom?
And then…
2) You need to say, under treaty law the law is A, under
custom the law is B, under general principles of law, the
law is C, and in sum, rules governing X is as follows.
What does it mean for
you?
• Draconia decided to build a dam,
which would block significant amount
of water supplies to Arcadia . In
response, Arcadia blocked the gas
supplies passing through Arcadia to
Draconia.
Consider this example:
• Is there a hierarchy between sources of international law?
• What happens when there is a conflict between different
sources of international law?
• What happens when all sources say nothing about what
international law? (the so called non liquet problem)
What does Article 38
does not say?
What is a treaty?
Article 38 of the ICJ: “international conventions,
whether general or particular, establishing rules
expressly recognized by the contesting states”
Article 2(a) VCLT
“treaty” means 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;
•
•
•
•
Express consent
Written form
Establishing rules
Governed by international law
Key features of treaties
•
•
•
•
•
Bilateral
Multilateral
Normative
Transactional
Constitutive
Treaties can be:
A treaty!
The Vienna Convention on the Law of Treaties (1969):
signatories 45, parties 113.
BUT:
It is also accepted that VCLT reflects custom.
What law governs the
law of treaties?
• Adoption, Authentication, Entering into Force
Reservations
• Scope of application
• Interpretation
• Invalidity
• Denunciation-Termination-Suspension
• Dispute settlement
What does the law of
treaties regulate?
• Express consent
• Refrain from acts defeating the object and purpose of treaty
(VCLT18)
• Possibility to modify legal effect through reservations regime
(VCTL 19)
• Pacta sunt servanda (VCTL 28)
• Treaties create obligations independent from domestic law
(VCTL 27)
• Interpretation of treaties based on wording, context and object
and purpose (Article 31)
Key principles of
governing treaties
• You need to READ the treaty. It will tell you things like:
when it came into force, whether it accepts reservations,
what happens if there is a dispute.
• If the treaty is silent, you need to look at the VCLT.
How do we know what rules
govern a particular treaty?
• A treaty needs to be ratified by an adequate number
of states in order to come into force.
• What happens when a state signs a treaty, but does
not ratify it?
Coming in to force