Post on 24-Dec-2015
Government 1740Government 1740
Lecture 4: Sources of International Law:
Custom and Treaties
INTERNATIONAL LAWINTERNATIONAL LAW Summer 2006
OUTLINEOUTLINEI. Sources of International LawII. Customary International Law (CIL)
A. What it isB. Theories critical of CIL
II. The Nature of Treaty ObligationsA. DefinitionB. Pacta Sunt ServandaC. The Vienna ConventionD. Invalid Treaties
III. How Treaties are Made: From Negotiation to Interpretation
IV. Treaty Termination: cooperatively, unilaterally, and exceptional circumstances
I. Sources of International I. Sources of International LawLaw
Article 38 of the International Court of Justice:
•Treaties•Custom•General Principles of Law•Judicial Decisions•Writings of Jurists
•What constitutes custom?•Broad acceptance, regularity, duration of a practice•Opinio juris
•Why is custom is binding?
•The contestation of custom – critics?
Customary International Customary International LawLaw
The “Traditional View”The “Traditional View”•Rules that evolve from state practice
Theories Critical of Theories Critical of Customary Customary
International LawInternational LawNormative critique: weakly linked with consent.
Positive critique:– CIL does not explain foreign policies or world
politics.– It only reflects the interests and practices of the
most powerful
environment interests behavior
Other sources of Other sources of International LawInternational Law
General Principles of law
•Judicial Decisions
•Writings of Jurists
II. The Nature of Treaty II. The Nature of Treaty ObligationsObligations
Treaty: An international agreement between two or more subjects of international law which is intended to create rights and obligations for the parties to it
Basic Principles of Treaty Basic Principles of Treaty LawLaw
Pacta Sunt Servanda: Agreements must be served; they are binding
1969 Vienna Convention on the Law of Treaties
Invalid TreatiesInvalid TreatiesUnauthorized negotiatorEssential error of factImpose obligations on third parties
Invalid TreatiesInvalid TreatiesAgainst prevailing norms or illegal
Invalid Treaties?Invalid Treaties?Concluded under the threat or use of force
(VCLT Article 52)
Opium Wars
Treaty of Nanking
Invalid Invalid Treaties?Treaties?
Concluded under the threat or use of force
Treaty of Versailles
Invalid Treaties?Invalid Treaties?
Concluded under the threat or use of force
Guantanamo Bay
III. How Treaties are III. How Treaties are MadeMade
Negotiation– All treaties begin with politics– Shaped by power, interests,
bargaining, and persuasion.
Treatymaking, Treatymaking, continued...continued...
Signature: signing of adopted text
Adoption: agreement on a final text
Ratification: done by the executive of each country, according to domestic rules that typically involve the legislature
“...the exclusion or modification of the legal effect of certain treaty provisions.”
Reservations:Reservations:
ICCPR Reservations:ICCPR Reservations:United States:
"(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.”
Other Aspects of Treaty-makingOther Aspects of Treaty-making
•Accession/Adhesion
•Entry Into Force
•Interpretation
IV. Treaty TerminationIV. Treaty Termination•Terms of the Treaty itself
•Notice
•Explicit or Tacit Agreement
•Violation by one side
•Clausula rebus sic stantibus
•State Extinction
Summary:Summary: Treaties are the most important source of
international law, followed by custom Custom requires a pattern of behavior, as well as a
widespread belief that a norm is obligatory (opinio juris)
Pacta sunt Servanda: Treaties are to be observed Secondary rules have developed on Treaty Law:
Vienna Convention 1969 Through Treaty Law, states are trying to achieve a
balance between:Certainty and FlexibilityObligation and Consent