Public International Law Outline

Merkel Public International Law Spring 2012

International Court of Justice art 38

1. Gives sources that a diplomat may use in terms of solving problems that are in controversy. (arranged by hierarchy as they are consent based)

a) international conventions (meaning treaties)

a. Joining by ratification v. accession

i. Ratification means you negotiated the original terms of the treaty where as accession means you joined after the original negotiation.

b. Reservations: reserving state be regarded as being a party to the convention while maintaining its reservation

-Majority rule: making reservations is to be expected.

-Minority rule: adoption of the convention should not come at any price (i.e. reservations)

Reservation = excluding/modifying legal effect of a provision (via VCLOT art 2(1)(D) – after a year of no objections reservation is accepted VCLOT 20(5).

c. Tools for interpreting treaties – via Eastern Air v. Floyd

– (bi)lingual dictionary, judicial interpretations (as applied by the treaty), academic commentary, logic (expression of the intent of the treaty), legislative analysis (at time of treaty and thereafter)

d. Withdrawal from a treaty – via Nagymaros Dam Project

General rule: parties of a treaty must agree to modify or nullify a treaty together.

– possible arguments for leaving a treaty and standard (not exhaustive) TREATY TERMINATION VCLOT 65-68

1. state of necessity à this only suspends the agreement

2. impossibility of performance à unlikely to conform to VCLOT art 61 which requires a permanent disappearance of destruction of an object indispensable for the execution.

3. changing of circumstances (political nature, economic viability, environ issues) à weak argument VCLOT art 15, 19, 20 allow for parties in treaty to adapt to changes of circumstances.

4. material breech à depends on who is breeching, but reconciliation a possibility for maintaining the treaty despite a breech.

5. environmental concerns as a means of termination à see page 85

6. bi-lateral repudiation to the treaty à however reciprocal non-compliance is not the way to do this.

e. Treaties in writing – generally req’d under VCLOT art 2.

– though unwritten treaty or at least a contract can be established between states via Eastern Greenland Case

– binding states on Int’l plane: “Full Powers” pres, sec state, head of diplomatic missions, ambassadors between a state and the one they work within, representative accredited by states to an international conference.

NOTE: state’s internal organization regarding consent of an agreement (i.e. 2/3’s senate ratification) dos not have a bearing on agreement made in int’l setting – sec state rusk – highballs and cointosses page 94

i. McCann – ECHR

ii. Assylum case – no binding treaty on the state or in the region to support Columbia (positivist view!)

iii. VCLOT – US not official, but still participates

b) international custom (general practice of countries somewhat consensual as evidenced through customs and usages when there is no treaty)

a. consistent state practice (constant no longer used, because anyone not following would serve as a counter example) – thinking fishing/war case france counter example

b. opinio juris – rules that states follow not out of wim, but obligation.

-Jus Cogens (preemptory norm Art 53) norms may fall under opinio juris and require enforcement as erga omnes principles.

Jus Cogens: higher rank of customary rules. Applies world wide. No state can opt out of a principle. The only way a jus cogens principle can be trumped is if there is a higher jus cogens principle. (invading another country, (norm against aggression) to stop genocide)

State can’t opt out of a Jus Cogens principle

Ergo Onmes: obligation, duty. A duty owed between one state to another. Once a state violates its obligation, other states have an obligation to take action.

Coextensive with Jus cogens principles, but a few principles back ergo onmes that are not Jus Cogens (i.e. keeping Int’l sea lanes open)

Universal jurisdiction: jus cogens principles if violated give universal jurisdiction over the violators.

Relates to power. UN, Nuremburg trial. Several states claim universal jurisdiction over crimes such as genocide.

c. utilize the works of jurists and commentators, as to what the custom is, not what it ought to be. (via paquette Habana)

d. regional norms can be binding. Contra Asylum

e. Treaty provisions can diffuse into custom in other instances (fishing boats in European warfare treaty becomes a precedent in subsequent conflicts)

i. French non-compliance with this custom against the dutch was not a repudiation, rather it was a temporary suspense to show why the norm exists.

f. To be custom, practice must be nearly if not completely universal.

i. If it isn’t universal, it likely won’t be considered binding .

ii. NOTE: A treaty a party is not party to may