CHAPTER 1

SOURCES OF INTERNATIONAL LAW

Art. 38(1) of the Statue of International Court of Justice 1. International Conventions 2. International Custom 3. General principles of law 4. Subsidiary means for the determination of rules of law a. Judicial decisions b. Teachings of the most highly qualified publicists TREATY International agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Reasons why the expression treaties should be employed rather than international agreements a. Treaty is very common and its use is steadily increasing b. Juridical differences lie almost exclusively in the method of conclusion and entry into force and these spring exclusively from the content of the agreement, whatever its form c. An extraordinarily varied nomenclature has developed which serves to confuse the question of classifying international agreements d. The term treaty as a generic term embraces all kinds of international agreements in written form is accepted by the majority of jurists e. Term treaty, as used in draft articles, covers only international agreements made between 2 or more States, however, this does not intend to deny that other subjects of international law may conclude treaties f. The phrase governed by international law serves to distinguish between international agreements required by public international law and those which are regulated by the national law of one of the parties o The element of intention is embraced in the phrase governed by international law g. However, this does not deny the legal force of oral agreements under international law Capacity of States to Conclude Treaties Intl Law Commission Commentary: treaty-making capacity is vested exclusively in the Federal government, but there is no rule of international law which precludes the component States from being vested with power to conclude treaties with third States Representatives of the State to conclude treaties must have 1. Appropriate full powers 2. Appeared from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers Roan Salanga

Representatives of the State not having to produce full powers: 1. For all acts relating to the conclusion of a treaty a. Heads of State b. Heads of Government c. Ministers for Foreign Affairs 2. For adopting the text of a treaty a. Heads of Diplomatic missions b. Representatives accredited by States to an international conference or to an international organization or one of its organs An act relating to the conclusion of a treaty performed by a person who cannot be considered as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State Adoption of the Text of a Treaty Takes place by the consent of all the States participating in its drawing except at an international conference where two-thirds vote of the States present and voting is needed unless by the same majority, they shall decide to apply a different rule Unanimity remains the general rule for bilateral treaties and for treaties drawn up between few States Means of Expressing Consent to be bound by a Treaty 1. Signatureprovides an effect to be bound when a. Treaty provides that signature shall have the effect b. Negotiating States agreed that signature should have the effect c. Intention of the State to give effect appears from the full powers of its representative or was expressed during negotiation d. Signature ad referendum by a representative, if confirmed by his State, constitutes full signature of the treaty 2. Exchange of instruments constituting a treatyprovides an effect to be bound when a. Instruments provide so b. Agreed by the States 3. Ratification provides an effect to be bound when a. Treaty provides so b. Agreed by the States c. Representative of the State has signed the treaty subject to ratification d. Intention of the State appears from the full powers of its representative or was expressed during negotiation 4. Acceptanceestablished as a name given to new procedures: ratification and accession o Forms of acceptance: a. Act establishing the States consent to be bound after a prior signature b. Without any prior signature 5. Approval or Accession o Signature subject to approval P a g e |1

Public International Law

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Accessiontraditional method 1. Treaty provides so 2. Agreed by the States 3. Subsequently agreed by all the parties By any other means if so agreed o

A reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later Legal Effects of Reservations and of Objections to Reservation 1. Modifies the provisions to the same extent for that other party in its relations with the reserving State 2. Reservation does not modify the provisions of the treaty for the other parties to the treaty inter se 3. When a State objecting to a reservation has not opposed the entry into force of the treaty, provisions to which the reservation relates do not apply as between the 2 States to the extent of the reservation Withdrawal of Reservations and of Objections to Reservations 1. Consent of a State which has accepted the reservation is not required for its withdrawal 2. Objection to a reservation may be withdrawn at any time 3. Withdrawal of a reservationnotice is required 4. Withdrawal of an objectionnotice is also required Procedure regarding Reservations 1. Must be formulated in writing 2. Must be communicated to the contracting States 3. Considered as having been made on the date of its confirmation 4. Withdrawal of a reservation or of an objection to a reservation must be formulated in writing Points to remember about Reservation and Objection 1. If the reservation is compatible with the object and purpose of the Convention, reserving State is considered as a party to the Convention 2. If the reservation is incompatible with the object and purpose of the Convention, reserving State is not considered as a party to the Convention 3. Objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect only upon ratification Interpretation to Treaties 1. Made in good faith and in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose 2. Supplementary means of interpretation are a. Preparatory work of the treaty b. Circumstances of its conclusion Preemptory Norms of International Law (Jus cogens) A norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can P a g e |2

Exchange or deposit of instruments of ratification, acceptance, approval or accession 1. Exchange between contracting States 2. Deposit with the depositary 3. Notification to the contracting States or to the depositary, if so agreed Treaty is in force at the moment of exchange because the act of deposit establishes the legal nexus Obligation not to defeat the object and purpose of a treaty prior to its entry into force An obligation of good faith to refrain from acts calculated to frustrate the object of the treaty attaches to a State which has signed a treaty subject to ratification Treaty-Making Power in Canada This is a part of the royal prerogative There is no obligation at law upon the government to submit treaties to Parliament, either before or after their signature since treaties are not part of the law of the land Reservations to Treaties Allowed unless 1. Reservation is prohibited by the treaty 2. Treaty provides that only specified reservations may be made 3. Reservation is incompatible with the object and purpose of the treaty Each State which is a party to the Convention is entitled to appraise the validity of the reservation, and it exercises this right individually and from its own standpoint No State can be bound by a reservation to which it has not consented Acceptance of and Objection to Reservations 1. Reservation expressly authorized by a treaty does not require subsequent acceptance by other contracting States unless the treaty so provides 2. Application of the treaty in its entirety between all parties is an essential condition, a reservation requires acceptance by all the parties 3. When a treaty is a constituent instrument of an international organization, a reservation requires the acceptance of the competent organ of that organization Objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State Roan Salanga

Public International Law

be modified only by a subsequent norm of general international law having the same character Examples of jus cogens: a. Treaty contemplating an unlawful use of force contrary to the principles of the Charter b. Treaty contemplating the performance of any other act criminal under international law c. Treaty contemplating or conniving at the omission of acts such as trade in slaves, piracy, or genocide, in the suppression of which every State is called upon to cooperate Withdrawal and Termination 1. In conformity with the provisions of the treaty 2. At any time by consent of all parties Not subject to denunciation unless 1. Parties agree 2. Implied in the nature of the treaty A treaty is terminated if all the parties to it conclude a later treaty relating to the same subject matter and the parties intended that the matter should be governed by that treaty Fundamental Change of Circumstances (Rebus sic stantibus) Fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from the treaty 1. If the treaty establishes a boundary 2. Fundamental change is the result of a breach by the party invoking it Fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from the treaty when 1. Existence of those circumstances constituted an essential basis of the consent 2. Effect of the change is radically to transform the extent of obligations still to be performed under the treaty

Roan Salanga

Public International Law

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