The Nature of International Law

 What is international law- is a body of rules and principles of action which are
binding upon civilized states in their relations to another.
 Scope of international law is nothing short of revolutionary.
 Is international law a law- international law as law is the claim that there can be no
law binding sovereign states.
Sources of International Law
 Customary International Law- a general and consistent practice of states followed by
them from a sense of legal obligation.
 Opinio Juris- the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do.
 Instant Custom – is not the product of constant and prolonged practice.
 Treaties- whether bilateral or multilateral. Treaties determines the rights and duties of
states just as individual rights determined by contracts.
 Treaties and customs- is intended to be declaratory of customary law, it may be seen
as evidence of customary law.
 Equity – the permanent court of justice had occasion to use equity as a source of law.
 Soft Law – not included among the source is what growing literature.
What is a treaty?
 Article 2(1)(a) of the Vienna Convention on the Law of Treaties defines a treaty as:
an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.
 To qualify as a ‘treaty’, therefore, the agreement must satisfy the following criteria:
a) it must be a written instrument or instruments between two or more parties;
b) the parties must be States within the meaning of international law;
c) it must be governed by international law; and it must be intended to create legal
obligation.
> Can it be unwritten? Yes, but there might be legal consequences
Fundamental principles of the law of treaties
 the principle of free consent- the principle of free consent means that a State cannot
be bound by a treaty to which it has not consented although there are some exceptions
to this rule.
 the principle of good faith and -he principle of good faith is fundamental to the law of
treaties.
 the principle of pacta sunt servanda - Pacta sunt servanda, a Latin maxim which
literally means that agreements must be kept, is embodied in Article 26 VCLT.
Process of concluding a treaty
 Negotiation- representatives of States must have the necessary powers to engage in
negotiations.
 Adoption of the text of a treaty- this is a formal act whereby the form and content of
the proposed text are settled (Article 9 VCLT).
 Authentication of the treaty- during this stage the definitive text of the proposed
treaty is established as correct, authentic and not subject to alteration.
The legal effects of signature are as follows:
(1) The signing of a treaty may represent simply an authentication of its text. Where signature is
subject to ratification, acceptance or approval, signature does not establish consent to be bound.
(2) In the case of a treaty which is only to become binding upon ratification, acceptance or
approval, that treaty, unless declaratory of customary law, will not be enforceable.
Consent to be bound
A State may express its consent to be bound by the relevant treaty by signing it,
exchanging instruments constituting the treaty, ratifying, accepting, approving or
acceding to it, or by any other means if so agreed (Article 12 VCLT).
Ratification vs Accession - they are the same but in accession it comes in after entry into force.
Obligation of the state upon signing a treaty?
-> the act of signing a treaty creates an obligation of good faith on the part of the
signatory, to refrain from acts calculated to frustrate the objects of the treaty and to submit the
treaty to the appropriate constitutional machinery for approval. Signature does not, however,
create an obligation to ratify.
> A treaty can be called an “executive agreement”.
How states express their consent to be bound by treaties
> The consent of a State to be bound by a treaty may be expressed by signature, exchange
of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed.
Legal effects of signing a treaty
(1) The signing of a treaty may represent simply an authentication of its text.
(2) Treaty which is only to become binding upon ratification, acceptance or approval, that
treaty, unless declaratory of customary law, will not be enforceable against a party until
one of those steps.
Ratification
 Ratification is ‘the international act so named whereby a State establishes on the
international plane its consent to be bound by a treaty’ (Article 2(1)(b) VCLT).
 Ratification is the formal act whereby one State declares its acceptance of the terms
of the treaty and undertakes to observe them.
1. Ratification in municipal law – the formal act of the appropriate organ of the State effected in
accord with national constitutional law.
2. Ratification in international law - a procedure which brings a treaty into force for the State
concerned by establishing its definitive consent to be bound by the particular treaty.
The consent of a state to be bound by a treaty is expressed by ratification when:
(a) the treaty provides for such consent to be expressed by ratification;
(b) it is otherwise established that the negotiating states were agreed that ratification should be
required;
(c) the representative of the state has signed the treaty subject to ratification; or
(d) the intention of the state to sign the treaty subject to ratification appears from the full powers
of its representative or was expressed during the negotiations.

Reservation to a treaty - What is its legal effect?

 Under Article 2 of the VLCT defines reservations as a unilateral statement, however
phrased or named, made by a state, when signifying, ratifying, accepting, approving
or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that state.
Under Article 21 its legal effects are;
 A reservation established with regard to another party in accordance with Article 19,
20 and 23;
 The reservation does not modify the provisions of the treaty for other parties to the
treaty inter se.
 When a State objecting to a reservation has not opposed the entry into force of the
treaty between itself and the reserving State.
Why do states make reservations to treaties?
 A reservation can be roughly defined as a unilateral statement made by a State or
international organization, when signing, ratifying, acceding, or otherwise expressing
its consent to be bound by an international agreement.
When are reservations unacceptable? What is their effect?
Article 19 lists the following reservations as non-permissible:
• reservations prohibited by the relevant treaty;
• reservations which are not included in the list of reservations expressly allowed under
the relevant treaty;
• reservations which are incompatible with the object and purpose of the relevant treaty.
As to the effect:
“Under traditional international law, a state that attaches an impermissible reservation cannot
become a party to the treaty unless all other parties agree to the reservation
When it acceptable? What are its effects?
Between a reserving State and a contracting State which has made no objection. The treaty will
be modified in that the provision to which the reservation relates will not apply between them.
When does a treaty enter into force?
 Treaties enter into force on the date agreed upon by the parties. Where no date is
indicated, the treaty enters into force once consent has been given.
Principle of pacta sunt servanda
>Pacta sunt servanda means agreements must be kept. Every treaty in force is binding
upon the parties to it and must be performed in good faith.
Grounds to nullify a treaty
 Article 43. Provisions of internal law regarding competence to conclude a treaty
 Article 44. Specific restrictions on authority to express the consent of the State
 Article 45. Error
 Article 46. Fraud
 Article 47. Corruption of a representative of the State
 Article 48. Coercion of a representative of the State
 Article 49. Coercion of a State by the threat or use of force
 Article 50. Treaties conflicting with a peremptory norm of general international law
(jus cogens)
Territorial application of treaties
 Under Article 29 VCLT, Vienna Convention on the Law of Treaties (VCLT) in the
absence of any territorial clause or other indication to the contrary, a treaty is
presumed to apply to all the territories for which the contracting States are
internationally responsible.
How are conflicting treaties resolved?
 > Article 30 of the VCLT. Application of successive treaties relating to the same subject
matter
Effect of a treaty on a third party
 The fundamental rule is that a treaty applies only between the parties to it. This is
known by the maxim pacta tertiis nec nocent nec prosunt and is contained in Article
34 VCLT.
Can treaties be amended?
 The general rule on amendments, found in Article 39 of Vienna Convention, is that a
“treaty may be amended by agreement of the parties.
Principle of clausula rebus sic stantibus
 The principle of clausula rebus sic stantibus provides that a party is not bound to
perform a treaty if there has been a fundamental change of circumstances since the
treaty was concluded.
Termination of treaties
Treaties can be terminated in the following circumstances;
*When it contains an express provision to this effect and a contracting party acts in conformity
with that provision.
*When there is no provision for termination or withdrawal, Article 56(1) VCLT allows it if;
- it is established that the parties intended to admit the possibility of denunciation or
withdrawal, or
- a right of denunciation or withdrawal can be implied by the nature of the treaty
Effects of armed conflicts on treaties
The existence of an armed conflict does not ipso facto terminate or suspend the operation
of treaties:
(a) as between States parties to the conflict;
(b) as between a State party to the conflict and a State that is not.
Customary International Law
 Custom or customary international law means “a general and consistent practice of
states followed by them from a sense of legal obligation.”
Elements
 the material factor, that is, how states behave, and
  the psychological or subjective factor, that is, why they behave the way they do. Two
elements:
State practice - Is there a requirement to its duration, uniformity, consistency and universality?
 State practice pertains to the first element of customary international law
 As to duration, there is no particular duration required for a practice to become law.
 As to uniformity, it must be constant and uniform to affected States but complete
uniformity is not required.
 As to generality, it means the practice is widespread but not necessarily universal
adherence to the rule.
How is state practice manifested? Give examples.
>Manifestations of practice include, among others, the conduct of States ‘on the ground’,
diplomatic acts and correspondence, legislative acts, judgments of national courts, official
publications in the field of international law, statements on behalf of States concerning
codification efforts, practice in connection with treaties and acts in connection with resolutions
of organs of international organizations and conferences.
What is the persistent objector rule? What are its requirements? What is its effect?
 When a State persistently objects to a rule of customary international law during the
formative stage of that rule it will not be bound by it.
 A number of conditions must be met by a State in order to rely on the persistent
objector rule. These are:
a) raise its objection at the formative stage of the rule in question;
b) be consistent in maintaining its objection;
c) inform other States of its objection.
What are general principles of law? Give examples
 prescription,
 res judicata
 resigniert alios acta
 pacta sunt servanda
 lex specialis derogat generali
 conceptions of restitution
 logical rules of proof
 rules against unjust enrichment
 jurisdictional primacy of international law over municipal law.)
Do judicial decisions create precedent in international law? Does it matter if it is a decision of an
international tribunal or a decision of a municipal tribunal?
No. As there is no binding authority of 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.
How has the ICJ referred to teachings of publicists in its decisions?
 Article 38(1) of the ICJ Statute mentions ‘the teachings of the most highly qualified
publicists’ as a ‘subsidiary means’ to be applied by the Court when it ‘decides in
accordance with international law such disputes as are submitted to it’.
What is equity? What is its difference under Article 38 (1)(c ) and Article 38 (2) of the Statute of
the ICJ?
 Equity is a complex concept, which, in general, refers to what is fair and reasonable.
What is a peremptory norm of general international law (jus cogens)?
 A peremptory norm of general international law (jus cogens) is 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 be modified only by a subsequent norm of
general international law having the same character. (Article 53 VCLT)
Is the acceptance and recognition of all states required for the identification of a norm as jus
cogens?
 A peremptory norm of general international law (jus cogens) is 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 be modified only by a subsequent norm of
general international law having the same character.

Acceptance and recognition

1. The requirement of “acceptance and recognition” as a criterion for identifying a
peremptory norm of general international law (jus cogens) is distinct from acceptance and
recognition as a norm of general international law.
2. To identify a norm as a peremptory norm of general international law (jus cogens),
there must be evidence that such a norm is accepted and recognized as one from which no
derogation is permitted and which can only be modified by a subsequent norm of general
international law having the same character.
What are the legal consequences of jus cogens- If a later treaty is contrary to a customary rule
that has the status of jus cogens, custom will prevail.
What are obligations erga omnes? How are they different from jus cogens?
Article 1 of the 2005 Resolution provides the following definition of erga omnes obligations:
 (a) an obligation under general international law that a State owes in any given case to the
international community: or
(b) an obligation under a multilateral treaty that a State party to the treaty owes in any
given case to all the other States parties to the same treaty.
How did the Court take up obligations erga omnes in The Gambia v Myanmar?
12.What is ‘soft law’? Is it a source of international law?
They are international agreements not concluded as treaties and therefore not covered by the
Vienna Convention on the Law of Treaties. Other sources of soft law are administrative rules
which guide the practice of states in relation to international organizations. These are mostly
administrative procedures that are carried out with varying degrees of consistency and uniformity
that may eventually ripen into customary law or become formalized later on in treaties. Soft law
plays an important role in international relations because often states prefer non-treaty
obligations as a simpler and more flexible foundation for their future relations. The difference
lies mainly in the wish of the parties to model their relationship in a way that excludes the
application of treaty or customary law on the consequences of a breach of obligations.
What is comity? Is it a source of international law?
In their international relations, States also observe certain rules of comity These are not legally
binding, but rules of politeness, convenience and goodwill, such as the reciprocal provision of
free, but often very limited, on-street parking for diplomats.

Subjects and Other Subjects of International Law

 Are entities endowed with rights and obligations in the international order and
processing the capacity to take certain kinds of action
 The states as a person of international law should possess the following
qualifications, a permanent population, defined territory, government, capacity to
enter into relations with other states.
 States are the dominant subjects of international law.
 Immunities- they enjoy international personality, they can also be given the
immunities and privileges of international persons.
Territory, Land, Air, Outer Space
 Territory is an element of a state means an area over which a state has effective
control.
 Discovery and Occupation – is the acquisition of terra nullius, that s, territory which
prior to occupation belonged to no state or which may have been abandoned by prior
occupant.
 Prescription- is also recognized as a mode of acquiring sovereignty over territory.
 Cession or acquisition of territory through treaty, is another mode.
  Accretion and Avulsion can also lead to sovereignty over territory.
 Airspace under Article 1 to 4 of the Convention set down the governing principles:
Sovereignty, Territory, Civil and Aircraft and Misuse of civil aviation
Territory: Law of the Sea
 Territorial Sea- is a belt of sea outwards from the baseline and up to 12 nautical miles
beyond.
 Baseline normal or straight – is the low- water line along the coast as marked on large
scale charts officially recognized by the coastal state.
 Sovereignty over Territorial Sea – the sovereignty of the coastal state over its
territorial sea and the airspace above it as well as the seabed under the same as its
sovereignty over its land territory.
 The sea is subject to right of innocent passage by other states.
 Internal waters are all waters part of the sea, rivers, lakes landwards from the baseline
of the territory.
 Archipelagic Waters where the establishment of the straight baseline in accordance
with the method set forth in Article 7.
 Bays are considered internal waters of a costal state.
 Contiguous zone is an area of water not exceeding 24 nautical miles from the
baseline.
 Exclusive economic zone or patrimonial sea is a recent development. All water
beyond the contiguous zone were considered as high seas over which no state had
control.
 The continental shelf, archipelagic or insular shelf for archipelagos refers to the
seabed and subsoil of the submarine areas adjacent to the coastal state but outside the
territorial sea, to depth of two hundred meters, or beyond the limit, to where the depth
allows exploitation, and the seabed and subsoil of areas adjacent to islands.
 The Deep Seabed: Common Heritage of Mankind.’’ These are the sea-bed and the
ocean floor, and their sub-soil, which lie beyond any national jurisdiction.
 Islands can be very important because of the possibility of exploiting oil and gas
resources around them.
 The High Seas are subject to six freedoms: navigation, overflight, fishing, lay
submarine cables and pipelines, construct artificial islands and structures; and
freedom of scientific research.
 Hot Pursuit of foreign vessel where there is good reason to believe that the ship has
violated laws and regulations of a coastal state.
 Settlement of Disputes is compulsory. Under the XV of the 1982 Convention States
are required to settle peacefully disputes concerning the Convention. The principle of
good faith is fundamental to the law of treaties.