INL2000 Basic Principles of International Law

Joumana Ben younes 72405 (A)Oxana Golovashova(1104195)Katerina Smirnova1204325

University of Malta

Faculty of ArtsInternational Relations

Table of ContentsTitle3Introduction3Background on Treaty Law4Formation of Customary International Law5Opinio Juris5Treaties5TREATIES AND OPINIO JURIS6The relationship between Treaties and customary law7Conclusion8

Title

Discuss How customary International Law and treaties work together to develop general international law

Introduction

The notion of international law as a law is usually very controversial because of the way it is made, constructed and enforced. There is no central legislature to adopt legislation, no executive to apply or adopt the laws which are made and, finally, the international system lacks centralized judiciary for statutory interpretation and adjudicates disputes. Nevertheless, international lawyers, diplomats, international organizations representatives and others insist upon or restrict specific actions, individuals often repose trust on international law to make claims in national and international forums, also, international law is applied by national and international tribunals to resolve disputes. In other words, according to international lawyers, international law is made, applied, interpreted and and, sometimes, enforced through a variety of processes which will be studied in this work.Nonetheless, international law does exist and may be defined. Some available sources exist from which the rules may be extracted and analysed. From Malcolm Shaws point of view By sources one means those provisions operating within the legal system on a technical level, and such ultimate sources as reason or morality are excluded, as are more functional sources such as libraries and journals. What is intended is a survey of the process whereby rules of international law emerge.[footnoteRef:1] (Malcolm N., p.70) [1: Malcolm N. Shaw QC, International Law, Sixth edition (Cambridge University Press 2008) p.70]

The following chapter is about the primary ways of the establishment of international law. Article 38 of the Statute of the International Court of Justice describes the law that should be applied by ICJ (International Court of Justice) and the UNs principal judicial organ to resolve disputes:Statute of the International Court of Justice, Article 381. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations;d. . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.[footnoteRef:2] [2: Statute of The International Court of Justice, Article 38.]

Background on Treaty Law

In 1969 the Vienna Convention on the Law of Treaties was adopted and most norms of international law were codified there. Since 2006, January, 105 states are the members of this Convention. Most provisions of Vienna Convention confirm or codify customary international law before the treatys adoption. The rules of Vienna Convention are widely recognized and even the US, which is not a party to the treaty, is talking about the Convention as the authoritative guide to current treaty law and practice.The Vienna Convention provides such notion of a treaty as:Article 2Use of Terms1. For purposes of the present Convention: (a) treaty means 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. . . .As suggested in Article 2 of the Convention, treaties take many forms and can bedenominated by many different terms, including agreement, protocol,concordat, pact, accord, and charter.[footnoteRef:3] [3: Vienna Convention On The Law Of Treaties Signed At Vienna 23 May 1969, Article 2.]

Formation of Customary International Law

Customary international law usually develops from the state practice and the form of that law comes from ancient times. According to Roman law, custom may be recognized as a source, like the Greek city states gave birth to rules governing war, trade and other relations. Eventually, a sense of a legal obligation appears, also known as opinio juris. The drafters of the Restatement (Third) of the Foreign Relations Law of the United States therefore define custom as law like the results from a general and consistent practice of states followed by them from a sense of legal obligation.[footnoteRef:4] [4: http://library.law.columbia.edu/guides/Researching_Public_International_Law]

Opinio Juris

Not all state practice results in customary law. Indeed, there are many instances of repeated state practice that reflect simply conveniencefor example, the forms of address used for ambassadors or other government officialsbut not law. Consistent state practice becomes law when states follow the practice out of a sense of legal obligation encapsulated in the phrase opinio juris sive necessitatis.For international lawyers states often act without express reference to rules of international law. Accordingly, the subjective element implicit in customary international law, the belief that a practice is in fact binding, must often be inferred from the nature and circumstances of the practice itself. In many cases, judges and international law scholars may help identify and establish such inferences through careful review of the relevant practice and their work is therefore listed in Article 38 of the Statute of the International Court of Justice as a subsidiary means for determining the law. Whether proof of opinio juris is essential to the recognition of a new rule of customary international law is controversial. The International Law Associations Committee on Formation of Customary (General) International Law concluded in 2000 that it is not necessary to the formation of such a rule that such a belief exists, either generally or on the part of any particular State.[footnoteRef:5] [5: (Statute of the International Court of Justice 2014)]

Treaties

Vienna Convention on the Law of Treaties defines treaty as: 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.[footnoteRef:6] [6: (Vienna Convention on the Law of Treaties, 2014)]

Treaties are known by a variety of differing names: Conventions, International Agreements, Pacts, General Acts, Charters, through to Statutes, Declarations and Covenants. In Malcolm Shaws point of view In contrast with the process of creating law through custom, treaties are a more modern and more deliberate method.Where Oppenheims International Law emphasizes that not only is custom the original source of international law, but treaties are a source the validity and modalities of which themselves derive from custom.

TREATIES AND OPINIO JURIS

The existence of a rule of customary international law depends on two elements: the rule must reflect the general practice of states, and states must adhere to this practice in the belief that the law obligates them to do so. Accordingly, in considering the contribution that treaties can make to the formation of customary rules, it is not enough to examine the extent to which the treaties amount to practice. One must also determine in each case whether, assuming a given treaty can fairly be treated as an instance of state practice, adherence to the treaty satisfies the opinio juris requirement. This requirement means that a state acknowledges the right of states to whom it owes a putative duty to inquire about possible breaches of the duty and also acknowledges its obligation to make reparation for any breaches of duty.[footnoteRef:7] [7: (Shaw, International Law, 2008)]

With respect to many treaties, this determination can lead to the conclusion that the treaty is not merely an example of practice, but in addition, an example of practice believed to be legally binding. Even when this type of statement is an inaccurate description of the state of law as of the date of the treaty's conclusion, it amounts to an explicit acknowledgement by the parties to the treaty that they would be legally bound to the treaty's rules even if the treaty did not exist. This acknowledgement makes it easy to include those parties in the tally of states that not only follow a 'given practice but do so in the belief that the practice is law. However, it does not follow that conclusion of a treaty necessarily implies opinio juris, that is, that the parties believe that the treaty's provisions would legally bind them outside the treaty. Subjects of international law may assume obligations that would not otherwise bind them without that assumption suggesting that they believe the obligations would be otherwise binding. There are circumstances in which a particular treaty not only fails to express opinio juris, but actually denies opinio juris, that is, provides evidence that the parties would reject any duty to behave as the treaty required had the treaty not been concluded. If a treaty demonstrates that the parties believe they would have no legal obligation to behave as the treaty requires but for the treaty, it follows that practice under the treaty cannot supply the usage element necessary to establish a rule of customary international law. This follows because all usage does not create a rule of customary law-only usage informed by opinio juris does so.[footnoteRef:8] [8: (Shaw, International Law, 2008)]

While considerable disagreement exists among scholars concerning when usage is informed by opinio juris, it would seem obvious that if one can establish that particular usage is not informed by opinio juris, that usage is irrelevant to the formation of a customary rule. This is the clear opinion of the ICJ in the North Sea Case, in which the Court held that to constitute a rule of customary law, "Not only must the acts concerned amount to a settled practice, but they must also be such . . . as to the evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it." Practice undertaken despite a belief that it is not obligatory is not, therefore, that practice which contributes to the formation of a rule of customary law.

The relationship between Treaties and customary law

as shown in theNicaraguacase decided by the ICJ, a custom and a treaty can exist in parallel[footnoteRef:9].They do not, therefore, supplant or subsume each other. A cause of action arising from a dispute may be founded in either. For the present purpose, this rule is of ultimate importance in that it declares that custom and treaty always exist simultaneously. [9: Malcolm Shaw. 2008. International Law (Sixth Edition). New York: Cambridge University Press, pp. 72-93]

In summary, at the top of the hierarchy are the customary rules, including the general principles of law common to the interior; custom is therefore a source of First Instance, the only source of general binding rules all states. The second hierarchy is up to the treaty, which is in a customary rule, the rule of pacta sunt servanda[footnoteRef:10], the foundation of its obligation. [10: Black's Law Dictionary (8th ed. 2004)]

The third place is occupied by the sources provided by agreements and then by the acts of international organizations. The fact that the agreements shall be subordinate to the customary rules does not in itself mean the mandatory nature of the latter part of the first: a norm of lower grade may depart from the standard of higher grade if the latter allows. According to the common opinion, the customary rules are characterized by flexibility and therefore their derogation by agreement. This rule also applies to that particular category of customary law consists of the general principles of law common to the interior; a clear example is given by art. 27 UN Charter, which normally protects the Great Powers which, having a right of veto, can block a procedure of expulsion or coercive measures against them; the exception to the general principle nemo judex in his king is obvious. However, it is widely accepted that there is a group of rules of general international law which would be exceptionally compelling (jus cogens); Article. 53 of the Vienna Convention of 1969 states that "it is treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law", because it is intended for peremptory norm of general international law "a norm accepted and recognized by the community of States as a whole as a norm from which no derogation cant be made and that cant be changed to a new standard of general international law having the same character "; Article. 64 states that "if a new peremptory norm of general international law is formed, any existing treaty which is in conflict with this norm becomes void and terminates." In the silence of the Convention, that group of rules must be identified making lever on Article. 103 UN Charter, which states that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations they have undertaken under any international agreement shall prevail to the obligations under the present Charter": the 'respect for principles of the Charter 'is now considered as one of the fundamental rules of social life and international appears no longer as a simple arrangement covenantal, but as a customary rule binding that Article. 103 gave the initial push and then consolidating that has come over the years. Even the vast majority of the founding treaties of international bodies normally mention: Symptomatic is the preamble of the EC Treaty, where they focus on the purpose of "building prosperity of the Member States in accordance with the principles of the Charter of the United Nations." It is noteworthy that the art. 103 descends ineffectiveness, not the disability, the agreement is incompatible. The rules of the UN Charter from which descends a real obligations for States , and it can therefore be covered by the scope of Article. 103 (or rather, the customary rule corresponding to it), are some general principles that lie at the base of the big areas of expertise of the United Nations. Around the area of peacekeeping, the principle that requires states to refrain from the threat or use of force in international relations, except for the individual and collective self-defense, however, limited to the case of a response to an armed attack. the economic and social sector, the principle that commits states to cooperate, which may be obtained from the prohibition of conduct that would inevitably undermine the economy of other countries. the humanitarian sector, the principle of respect of human dignity and the field of decolonization and the principle of self-determination.Lastly, bilateral treaties have potential to produce customary law, and this will be a process that has to be in consistence with the terms of Article 38(1)(b)[footnoteRef:11]. [11: Statute of The International Court of Justice, Article 38.]

Conclusion

It is also to be noted that the rules governing the causes of disability and termination of treaties (rules on defects of the will, on the clause as things stand, etc.) Are mandatory rules any contractual clause that provides for an exception to these rules would remain in turn still subject to them. The fundamental rule that conventional norms may derogate from the common law, except of course for the jus cogens, is to be extended to the sources provided by agreements; in cases of doubt, however, that must be considered is the same Constitution of the bodies to impose the observance of general international law.

References

Anon., 2014. Statute of the International Court of Justice. [Online] Available at: http://www.icj-cij.org/documents/?p1=4&p2=2Anon., 2014. Vienna Convention on the Law of Treaties. [Online] Available at: http://www.admiraltylawguide.com/conven/lawoftreaties1969.htmlShaw, M. N., 2008. International Law. New York: Cambridge University press.Shaw, M. N., 2008. International Law. New York: Cambridge University press.Black's Law Dictionary (8th ed. 2004)Statute of The International Court of Justice, Article 38.