International Law
Professor T. Lynch
Fall 2014
Two main sources of international law: treaties and customary international law
TREATIES
– General Information. Everything below is apart of the VCLT.
– The US in in about 1700 treaties
– The only obligation upon signing the treaty is to not do things that hinder the object and purpose of the treaty
– Ratification shoes consent to be bound
o If ratification is not in accordance with the law, then the state is still bound, unless the process is CLEARLY wrong – like a citizen tried to bind
o Unless it is clearly wrong, cannot use internal (domestic) laws to justify FAILURE to perform a treaty
– Entry into force is states doing whatever their process is to ratify a treaty
o EX: after there has been 20 states then after 90 days the 20 states to ratify enter into force
– Custom that states are bound to their treaties
– Pacta sunt servanda à if you consent, you are bound
– Reservations: a unilateral statement which purports to exclude of modify the legal effect of certain provisions of treaty in their application to the State
o Can formulate a reservation unless:
§ Reservation is prohibited by the treaty
§ The treaty provides only specified reservations which do not include reservation in question
§ If not a or b, then can have the reservation as long as not incompatible with the object and purpose of the treaty
– There may be declarations instead of treaties
o Indicate states do not intend to be bound to anything. They “shall do” something are the words to indicate intent to bind
– Can amend a treaty and the amended treaty will have the same application
– Withdrawal or suspension:
o not subject to denunciation or withdrawal if there is no prevision regarding termination UNLESS
§ Parties established they intended to admit the possibility of denunciation or withdrawal
§ A right of denunciation or withdrawal may be implied by nature of treaty
· States can technically do what they want unless someone complains
· Is there something in ozone treaty convention that implies the right to withdraw? If a treaty’s object and purpose is satisfied, should they remove?
o If a party terminates or suspends, it can operate as a breach
§ In bilateral treaty – entitles other party to invoke breach and terminate
§ In multilateral treaty – can suspend the operation of the treaty or in part or to terminate it either in relation between themselves and defaulting state, or between all parties
– May terminate treaty if:
o FUNDAMENTAL change of circumstances which has occurred with regard to those existing after the conclusion of the treaty, the circumstances were not foreseeable.
o These may NOT be invoked to terminate treaty unless
§ Existence of the circumstances constituted an essential basis of consent to be bound
§ Effect of the change is radically to transform the extent of obligations to be performed
§ EX: treaty about a river and the river dries up is a fundamental change
– Some may argue they should get out of treaty because of impossibility, but this is a high threshold. Impossibility is not just simply changing yout mind such as not wanting to build a dam anymore
– THE VIENNA CONVENTIONS ON LAWS OF TREATIES (VCLT) (contains the above information also)
o US is not a party
o Is a treaty about treaties
o The Convention codifies several bedrocks of contemporary international law. It defines a treaty as “an international agreement concluded between states in written form and governed by international law,” as well as affirming that “every state possesses the capacity to conclude treaties.” Most nations, whether they are party to it or not, recognize it as the preeminent “Treaty of Treaties”; it is widely recognized as the authoritative guide vis-à-vis the formation and effects of treaties.
o This was an attempt to codify customary international laws on papers
o Treaties are between states
o Agreements pertaining to domestic laws between states may not be governed by international law.
§ EX: if US and Canada have agreement to buy and sell, they ca agree the agreement to be base on NY UCC law
o States who can be bound. A citizen cannot bind a state to a treaty because the state did not consent
o State can have reservations to a treaty
§ US has reservations mostly to protect the rights to the constitution such as the death penalty
§ US has reservations on things regarding discrimination and treating juvinells as adults
o Treaty enters into force as soon as consent to be bound by treaty has been bound by the negotiating
o ARTICLE 2
§ Ratification shows consent to be bound to the treaty. This is when a nation formally declares it is consenting to be bound
§ Key thing of ratification is that states are consenting to be bound to treaties
o ARTICLE 19
§ Reservations can be formed
§ EX of reservation on cruel and unusual punishment. US reserved to have cruel and unusual punishment reach the span of the constitution. This means they can still have the death penalty and (at the time) can charge juveniles as adults. Aslo reserved the right to discriminate because of the scrutiny levels.
§ Also some states may reserve to choose to not recognize others as states (isreal)
o ARTICLE 24
§ Entry into force as soon as consent has been bound by the negotiating states
o ARTICLE 27
§ Cannot use internal/ domestic laws to justify noncompliance
§ If a treaty says one thing, and the international law says another, follow the international law treaty
o ARTICLE 38
§ Rules in a treaty can become binding on 3rd party states through international custom
– Nothing in 34 – 37 prevents a rule set forth in a treaty from becoming binding on 3rd state as a customary rule of international law, recognized as such
o VCLT provisions do not prevent something from becoming binding to 3rd state as customary rule of international law
§ Treaty can become binding on 3rd state as rule of customary international law
· US is 3rd party because 3rd party is anyone not party to VCLT
§ States not parties to VCLT may still be bound by the rules articulated to the VCLT if suc
ding on 4rd party as customary rule of international law.
o VCLT provisions do not prevent something from becoming binding to 3rd state as customary rule of international law
o Treaty can become binding on 3rd state as rule of customary international law
§ US is 3rd party because 3rd party is anyone not party to VCLT
o States not parties to VCLT may still be bound by the rules articulated to the VCLT if such rules exist independently of the treaty under customary international law
o An articulation of what has already existed under customary international law
– For a practice of states to become a rile of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinion juris sie necessities)
o A practice that is generally followed but states feel can disregard is not customary international law
o Opinion juris is secondary consideration invoked to distinguish between legal and non legal obligations
o Traditional custom is evolutionary and identified trough inductive process in which a general custom is derived from specific instances of state practice
o Modern custom is derived from deductive process that begins with general statements of rules rather than particular instances of practice
– Paquete Habana examined customary international law:
o In the Spanish American blockade, US seized a shipping vessel and auctioned it off as war prize
o Not codified that this is international law, but looked at history to determine this was not right and cannot seize fishing vessels in war time
– Some customary international laws:
o Rules associated with treatment of diplomats
o Military conduct
o Laws of the sea
o Prohibition against slavery, torture, genocide, piracy
– A rule becomes customary international law in every state and binds even thought not participating in the activity of what became customary international law:
o If during the process of creating customary international law and a state PERSISTENTLY rejects the customary international law, the state is not bound and failure to consent will be respected
– A rule of customary international law is one which is created ans sustained by the constant and uniform practice of states and other subjects of international law in or impinging upon their international legal relations in circumstances (hint to subjective – element of belief or consent) which give rise to a legitimate expectation of similar conduct in the future
