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Decisions and Publicists

This category is described as a “subsidiary means of finding law”, Judicial decisions
and scholarly writings are, in essence, research aids for the Court, used for example to support
or refute the existence of a customary norm, to clarify the bounds of a general principles of
customary rule, or to demonstrate practice under a treaty.
Judicial Decisions
As there is no binding authority to precedent in international law, international court
and tribunal cases do not make law. Judicial decisions are, therefore, strictly speaking not a
formal source of law. However, they clarify the existing law on the topic and may, in some
circumstances, create a new principle in international law. They can also be considered evidence
of State practice.
The Writings of Publicists
This source generally only constitutes evidence of customary law. However, learned
writings can also play a subsidiary role in developing new rules of law.
Requisites to be a highly qualified publicist

His writings must be fair and impartial representation of law;
An acknowledged authority in the field

Examples: Grotius, Lauterpacht, Oppenheim, Crawford, Aust, Shaw, and Brownlie
Equity
Equity is understood to be:

A general principle of international law and thus may be considered as a material source
of law;
A way of infusing elements of reasonableness and ‘individualize’ justice whenever law
leaves a margin of discretion to a court in deciding a case. This is equity which operates
within the boundaries of law (equity intra legem).

Under Article 38(2) of the Statute of the ICJ, equity means that a decision may be made
ex aequo et bono, i.e. the court should decide the case not on legal considerations but solely on
what is fair and reasonable in the circumstances of the case (equity intra legem). However, the
parties must expressly authorize the court to decide a case ex aequo et bono. So far, the ICJ has
never delivered any judgment based on Article 38(2) of its Statute.

NOTE: Non-permissible reservations are invalid but views differ on whether they are ‘totally
invalid,’ which means that the reserving State’s ratifications is ineffective, or whether they are
‘partially invalid’, which means they are severed from reserving State’s declaration of consent to

failure to register a treaty has no effect on its validity. Registration and Publication of Treaties Entry into Force  The conditions of the entry into force are normally specified by the relevant treaty. however.g. a treaty will be officially published in the UN Treaty Series. Deposit  A depository is designated by the contracting parties to a treaty. Interpretative and Conditional Interpretative Declarations and their Relationship with Reservations  An interpretative declaration. Entry into Force. a treaty is presumed to enter into force as soon as all the negotiating States have expressed their consent to be bound by it. phrased or named. Article 102 UN Charter requires all treaties and all agreements entered into by any member of the UN to be registered with the UN Secretariat. VCLT). State X understands provision A as meaning. e. he is not entitled to determine the legal effect of any instrument or communication received from a party. Such declarations are nonbinding. Otherwise. However. so that anyone can consult it. Deposit. . The VCLT makes a distinction between grounds of nullity which:  Concern the lack of consent of a party to a treaty with the consequence that a treaty will still be valid (but not for a bilateral treaty) for all parties except for the State which did not consent to it. He is the custodian of the treaty and performs administrative tasks relating to it (Articles 76–80. is made by a State in order to specify or clarify its understanding of the meaning or scope of certain provisions of a treaty.be bound by the relevant treaty with the consequence that the treaty applies to the reserving State and the reservation is regarded. . This task is within the competence of the contracting parties. However. Registration  In order to ensure transparency in the conduct of international relations. . Publication  Subsequent to registration. Validity of Treaties Article 42(1) of VCLT sets out the only grounds on which a State can rely to nullify a treaty.

VCLT). . VCLT) or that it is in conflict with a jus cogens rule which emerged after its conclusion (Article 64. Lead to nullity of a treaty for all parties on the grounds that either it was concluded in violation of a jus cogens rule (Article 53.