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Public International Law

Custom and Treaty

Multilateral treaty as declaratory of customary international law

A multilateral treaty that purports through the clearest possiblelanguage in its preamble, to be declaratory of customary internationallanguage. The crucial question is whether the law enunciated in thetreaty is binding qua customary international law on the one non-participating state, without the necessity of any independent proof ofcustomary international law. There are three ways in which the lawdeclaring quality of a treaty might be established

The !rst is that the treaty, though appropriate language in thepreamble or elsewhere would state that it incorporates nothing butcustomary international law. The second is through travaux

preparatoires of the treaty or the instrument under the authority ofwhich the treaty was drawn up. The third would be through comparisonof pro"isions of the treaty with customary international law whereby itmight be established that certain articles of the treaty or all of itscontent are, as it were, an accurate photograph of the law.

Multilateral treaties as constitutive of new customary international law

Treaties that do not purport to be declaratory of customaryinternational law at the time that they enter into force mayne"ertheless with the passage of time pass into customaryinternational law. If one is to rely on a treaty that has grown into

customary international law, one must #$ pro"e the rule of customaryinternational law, %$ show that the treaty contains the same rule and &$thereby demonstrate that the treaty is e"idence of the state ofcustomary international law

Bilateral treaties as evidence of customary international law

'a(ing of Treaty

Treaties may be drafted as between states, or go"ernments, or headsof states, or go"ernmental departments, whiche"er appears the moste)pedient.

*eser"ation

+here a state is satis!ed with most of the terms of a treaty, but isunhappy about particular pro"isions then it can refuse to be bound bysuch pro"isions while consenting to the rest of the agreement. Theeect of a reser"ation is simply to e)clude the treaty pro"ision to which

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the reser"ation has been made form the terms of the treaty in forcebetween the parties.

Article # of the Con"ention on the law of treaties says that reser"ationmay be made when signing, ratifying, accepting, appro"ing oracceding to a treaty, but they cannot be made where the reser"ation isprohibited by the treaty, or where the treaty pro"ides that onlyspeci!ed reser"ations may be made or where the reser"ation is notcompatible with the obect and purpose of the treaty.

*eser"ation must be made in writing and communicated to treatyparties as well as other states entitled to become parties. *eser"ationsare distinguishable from #$ interpretati"e declarations and %$ unilateralstatements.

Interpretati"e declaration means that a state interprets a speci!c wordin a certain way to suit its interest. /nilateral statements are intention

on matters relating to the treaty but not to its speci!c pro"isions.

/nder articles %0 and %# if one state has proposed a resr"ation, eachother state may accept the reser"ation or obect to it and if anobection is not made within #% months the state is deemed to ha"eaccepted it.

There are three options upon reser"ation and it cannot be told which isthe current practice in international law

#$ The reser"ing states remains bound to the treaty e)cept for thepro"isions to which the reser"ation related.

%$ The in"alidity of a reser"ation nulli!es the instrument ofrati!cation as a whole and thus the state is no longer a party tothe agreement.

&$ An in"alid reser"ation can be se"ered from the instrument ofrati!cation as a whole and thus the state remains bound to thetreaty including the pro"isions to which the reser"ation related.

The general rule that became established was that reser"ations couldonly be made with the consent of all other states in"ol"ed in theprocess. 1owe"er, this restricti"e approach to reser"ation was notaccepted by the IC2 in the #34 *eser"ations of the 5enocide

Con"ention case.

*eser"ations to the Con"ention of 5enocide 6IC2, #7#$

6#$ Countries can ma(e reser"ations and remain party to a treaty aslong as the reser"ation is compatible w8the obect 9 purpose of thetreaty.

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6%$ If a party to the treaty obects to a reser"ation as beingincompatible, it can consider the reser"ing state as not a party.

The same has been included in #: Con"ention on the Law ofTreaties.

Article %06%$