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UNIT 1: INTERNATIONAL SOCIETY AND INTERNATIONAL LAW
BASIC CONCEPT OF INTERNATIONAL LAW
Legal order that rules the relations among sovereign states and other entities//subjects that are part of the international community and that evolves according to the needs of such society.
International law rule international relations but not all international relations are ruled by international law. International law only rules relations among states and international relations, but they are not the only actors of international society.
- International legal subjects: states or international organizations
- International actors: international companies, non-governmental organizations (greenpeace...)
International society is where international law applies but there’s a legal system that doesn’t rule all international society but any internal relation.
INTERNATIONAL LAW & INTERNATIONAL SOCIETY
International law in built in the ground of necessity of states, international is linked with the states.
International law is growing in a parallel way with the states.
Origins:
- At least 2 or more politically independent entities need to enter into relationship, at least to avoid destruction.
Treaty of Westfalia (1648): development of the idea of sovereign and independent states. It consists on treaties to agree with important features of their relations. Separate power between state and church. Agreed of the idea that they where independent of any other power: sovereignty. The power was directly from the king. The principles of equal sovereignty and non interference in other states affaires were established.
- Effective control over the state
- Possession
- Occupation over non civilized lands
European states where the firsts to have this ideas about international law established.
A state is sovereign when it considers itself as it and the other states recognize its sovereignty.
- Equally sovereignty
- Immunity of states immunity of jurisdiction: one state can’t be submitted to the submission of another state
International disputes have to be settled at an international level.
Law treaties were established between states to establish necessary rules.
The state needs a person who represents the state, which will be the state representatives who will have the same immunity as the state itself at least when they act as it.
Sources of international law were not only treaties but also customary laws
System of European states (1648): homogeneity, balance of power, coexistence between the different states.
Common acceptance of certain rules of conduct:
- Based on will / acceptance
- Minimum content: freedom of seas, diplomatic privileges and immunities
In this context the war was a legal method to solve conflicts. In international law war is considered as an instrument that the state had to solve their disputes.
Territory of the state: peace of earth + coast of the see (at that time was define at 3 miles because was the distance that a canon could achieve)
The international system is going to evolve and extend, this will consist on its evolution due to different aspects.
System of states of Christian tradition: all states who share the Christian tradition are admitted.
Colonisation: America, Asia, Africa. Extend European power through the colonies; the main issue will be how to solve the problems from the colonies coming to the metropolis. The new states are going to contest the principle of occupation as a legal way to get the sovereignty.
Independence of British / Spanish colonies in America (1776)
Extension to non European states
New principles and values: democracy, self-determination
Same system of international law, different from rules applied to non intra society people
Concerted action
Viena Congress 1815
Saint Alliance: was made to intervening in all the states which were occupied by Napoleon...
Concerted action through international conferences:
- Colonisation: new rules
- Peaceful dispute settlement: war couldn’t be the only way to settle disputes; they wanted to try some peaceful ways. War should not be the first answer but the last answer.
International commissions: European states were confronted to the need to establish common rules. It is an independent entity; the states who agreed with the rules took part of it
Administrative unions
When napoleon conquered it established the idea that sovereignty could be exercised by power.
European concerted action system: the states agreed to confront some common aspects together because it will be more efficient.
Practice of celebrating international conferences, afterwards they agreed to establish and agenda of international conferences.
System of civilized states (1856)
- Declaration of Paris / War of Crimea: invitation to ottoman empire to participate in the international society
- New areas:
One of the main changes in nowadays IL is the prohibition of the use of force. It is no longer allowed by IL, after
- Force can only be used in case of self-defense or if the security council autorizes the state.
It should be pointed out that the 1945 UN charter doesn’t ban force, just prohibits acting against another country, since it doesn’t ban countries having their own national army or to develop certain kind of weapons. It does ban certain kinds of weapons though, such as biological or nuclear weapons.
Before the second world war states were not forced by this international rule if they didn’t ratified it, and there isn’t any legislative power that can force states against their wills.
International Law doesn’t work this way. It works by common agreement on the application of some rule. If some countries agree in a international agreement but some doesn’t, the ones that doesn’t won’t be linked to that agreement. Some countries can also ask for reservations of the treaty. They can accept it but change the original or prevalent meaning of that agreement, for example when a state ratifies a treaty but adds that in their country it will be applied according to islamic laws. It makes the ways of implement international law less efficient than in internal law systems of states.
Ius cogens> ban genocide or apartheid, all states are linked to this. Even if they didn’t agree on that. If one state doesn’t respect this prohibition, other states will have the right to make intervention in that state.
A general world army was never created.. But many countries cooperate among themselves. Nonetheless, many organisations arose, such as NATO or EU.
In the 50’s the Cuban missile crisis led to a very tense situation that inspired the beginning of “pacific coexistence” period among the two big powers (USA and the Soviet Union)
Decolonisation. By the 50’s, over 50% of world’s population was living in colonies. States cannot use their force against people who want to get selfdetermination. They are allowed to use force against the state in a colonisation context. It is not a clear rule nowadays, it used to be within the colonial empires. This fact led to increase the number of states in the international community. In the seventies we appreciate the development of new rules in international law. Those new countries enter in the arena to solve economic differences among these states, and powerful countries should work for the economical development of these poor countries. International law forbids colonisation and gives the right to self determination and conform an independent state.
International agreements on human rights are aproved. (1968) Universal declaration of human rights and two different agreements on human rights> there was more consensus in economical than in human rights issue. Two different treaties were made.
70’s.Oil crises. Arab states as a group are recognised as such at the end of the seventies and gain rellevance in the international arena.
80’s. Development of international protection of environment. Environment is acommon issue. Common and shared responsabilies to protect environment. All the states should protect environment but not all of them are able to do it in the same way. We cannot expect all countries to act in the same way. Not all contries had contributed in the same way to destroy environment. Old strong industrialised economies had to assume more obligations than new economies.
90’s> Yugoslavia conflict brings the genocide problem again. Also Rwanda with uttus and Tuzzis conflict. It seemed something back in the second world war but it arose again at the end of the XXth century. The UN reacts creating international tribunals to judge the war crimes and genocides. The possibility of an individual being judged internationally due to its international relevant crimes was not accepted by all the countries.
1994 international court > Tribunal that emits jurisdiction to judge any international criminal as long as a state ratified the treaty of Rome that created the international court.
It changed a lot IL. Individual subjects can be judged by the violation of IL. Non state elements become subjects of IL.
Other non states gained importance as IL subjects, such as red cross or international amnesty, that control that international laws are respected.
Human dignity becomes one of the main issues, the idea that human being should be respected by any international actor becomes increasingly more important. Human rights get spread around the world, as well as the idea of human dignity. The idea of poverty to be something we should fight and eventualy erradicate also arose during that period in IL. National democracy as the right way to internally organize states. Not regulated by IL. Saudi Arabia, US and France all of them are equal states, and all of them act equally in the international community, the fact that SA is not a democracy doesn’t threat its status in the international society as it is an internal affair of the country.
These last principles that we nowadays take for guaranteed in international law, are very new in it. The transformation of IL is getting faster and faster.
ORIGINS AND HISTORICAL EVOLUTION OF IS AND IL XVII, XVIII, XIX, XX AND XXI CENTURY
GENERAL CHARACTERISTICS OF NOWADAYS INTERNATIONAL SOCIETY
Many new rules in IL. Security council.
Principle of non intervention> No state will interfere in other states internal affairs. Unless the states ask other states to make intervention. In case an internal affair of a State becomes an international issue as it becomes a thread to global peace and society. Permanent members of the Security Council can also declare the eventual intervention in a state. It can also be declared that NATO went further than what the security council said. Among the permanent members of the security council there are different visions, as Russia and China have different interests and political visions in comparison with the Usa, the UK or France.
For example, International action if human rights are massively violated in one country. These interventions for human rights (Iraq or Syria) have not been very succesful and questionates this rule, so it is discussed if such rule exists. It is said that it doesn’t, but there are some cases, not many, that approximates to it. International law fails at solving this kind of problems as we can see in Syria, its war and the humanitarian crisis without solution to date.
Characteristics of today’s International Society
Universality> All states known form part of the international society. Not only states but also international organisations and non governmental organisations, transnational companies… Any kind of actor that has international relevance. Satellites in outter space are also part of international society. The composition of International society goes beyond the known world.
The Charter: international treaty submitted to international law. Outlines the rights and obligations of the UN member states. It create an international organization, so it’s a kind of constitution of the UN. The characteristics are not like other international organizations, its considered a kind of constitution of International Society.
This is reflected in the article 2.6 and 103 of the Charter, because they established that not only members are obliged but also all the others states are also obliged when it’s referred of maintaining peace and security.
The Charter does not refer to states but nations.
Purposes of the UN (art.1): the purposes are very wide
- To maintain international peace and security: meaning and measures
- To develop friendly relations among nations: strengthen real peace
- To achieve international cooperation in: o Solving international problems of economic and social nature o Encouraging and promoting the respect for human rights
There are discussions about if there’s hierarchy between the numbered purposes on the article.
At that time they were thinking about peace between states not about internal situations. For example, there are no prohibitions of armies. Even thought, they know that internal situations can be a threat to maintain peace.
Before 1945 was no international document protecting human rights, this issue was something for each state.
How these purposes are going to be reached? Art. 2 establish the UN principles. States have to act respecting this article. In 1979 the General Assembly did a resolution to adapt the UN principles to the new society.
The 2625 resolution complete the principles established in article 2, some are the same and others are new. This fact shows the evolution of society.
- All states are legally equal
- Good faith
- Obligation of peaceful settlement of disputes
- Prohibition of threat or use of force in international relations
- Obligation to assist the UN to fulfil its purposes
- Authority of the UN not only between member states but also with no member states
- UN should never intervene in matters of internal affairs if is not necessary for maintaining peace and security
**(know which are the different principles and which are new or different)
2625 resolution principles:
Considering that the progressive development and codification of the following principles:
a. The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations, b. The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, c. The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter, d. The duty of States to co-operate with one another in accordance with the Charter, e. The principle of equal rights and self-determination of peoples,
f. The principle of sovereign equality of States, g. The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter.
Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
- The Organization is based on the principle of the sovereign equality of all its Members.
- All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
- All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
- All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
- All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
- The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
- Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
Purposes (goals) ≠ principles (rules state may obey)
Principles that can be found in the Charter and the 2625 Resolution (they are the bases for international law)
- Sovereign equality
- Good faith
- Settlement of disputes
- Prohibition of threat or use of force in international relations
Principles that are established by Charter (principles in directly relation with UN)
- Assistance to the UN
- Authority of the UN over no member States
- Excluding UN jurisdiction over member States internal affairs
Principles that are established by the 2625
- No intervention in internal affairs of the States (does not exclude only the UN of intervening but all States)
- Peaceful cooperation (new independent states were undeveloped economically and they needed cooperation)
- Self-determination of peoples (it’s on article 1 of the charter but it’s not established as a principle that’s why they included)
o Functions (art. 62 + coordination of specialized agencies) assist general assembly in issues about economic and social cooperation. Non-authorous organ, it doesn’t has function itself, only assistance. General assembly will include these issues in its own program. o It is composed by diplomats. o Art. 63 charter: is the organ which is going to negotiate international agreements between UN and other international organizations. o Has created a lot of subsidiary organs
- Trusteeship council: was created to promote the colonization process in order to let them become independent states. In 1994 stopped working when the colonization process finished.
- International court of justice. The Statute of the court is annexed of the UN Charter, because not all UN members are members of international court of justice. o Composition: 15 judges, they meet in The Hague (Netherlands). The judges are elected by the general assembly and the Security Council; they need to guarantee balance between different legal systems existing in the world. Its decisions are founded in law and it has a good reputation o Jurisdiction: contentious (when there are disputes between states they can decide to summit these disputes to the international court, states have to accept this summit. They can decide if they respect the jurisdiction or not, but once they have accepted they have to follow it) and consultative (request of international organization or international organ they summit questions to the court). Normally, states try to solve their disputes without going to the international court because it’s bad considered.
- Secretariat o Secretary general: head of all the UN agents and workers. He also have political functions because is the representative of the UN. Until now, they have been 8 secretary generals o Staff
- Other o Subsidiary organs o Specialized agencies o Un family structure
The six principle organs will be allowed to create subsidiary organs and specialized agencies to assist the principal organs in the development of their functions.
The UN is not the only international organization with the main responsibility to maintain peace and security but there are other international organizations which are universal and have specific areas of action. They do not depend on the UN but they are coordinated forming The United Nations System.
UNIT 3: LEGAL NATURE OF INTERNATIONAL LAW
Public international law is a product of social, international law rule in international society where the state is the centre; also it’s a product of history.
International law is the law of states, but more and more it seems that social values in international society are common values (humanity values).
Legal ground of international law
Arguments against international law it’s really an international system:
- Lack of sanction.
- Lack of efficiency in the ways that states are obliged to accomplish international law. This can be discussed, because almost all international law agreements are applied and followed by states without being necessary to oblige them. Whenever a state break a rule is very difficult to oblige it the mechanisms are inefficient/weak.
- State sovereignty, this is what make it difficult to oblige states. Each state decides to accept or respect the rules.
Legal basis of international Law defending that international law is a legal system:
- Same structure of any legal order
- Based on States sovereignty: mutual consent. But is not an individual consent, it is mutual agreement of states that create international law rules. If they accept a treaty they are obliged to follow it, only when a period of time has passed they can stop following it. The legal system is founded in the principle of equal sovereignty between states. Consent has to be free and cannot be imposed.
- There’re common values and ideals that make law a social need why will states accept an international law rule? Because it’s on their interests, in order to maintain peace and security.
It is a legal system but different that national systems.
Specific features of international law
Based in state sovereignty
States create international law, and applied by states to rule relations between states.
Limits:
- Consent is almost never formal. A silence of a state can oblige a state
Norms establish rights and duties
Can be content in formal sources: procedure to create international law
Material sources: what source gives validity to international law states will.
- International society formed by sovereign states which are all equal, cannot exist an international power that impose law to states except they accept it (for example, European union)
- Double basis: content and consensus. Agreement/consent (express) of two or more states is needed no create an international norm. Unilateral will of a state has no effect? No, it can also create obligations for that state (it doesn’t create norms because it don’t create rights and duties, only duties) The creation of international law can be based on the consensus of certain states, that they do not really consent but it exists a consensus to a rule applicable to all of them general rule to all international society or regional limitation.
Sources of art. 38 Statute ICJ
There is no catalogue of sources of international law. Art. 38 Statute International court of justice, we assume that are the sources of IL. Problems: this article was not agreed to declare the sources of IL, it was to decide how the ICJ had to act; was adopted in 1945, at that moment was the beginning of IS and IL so there are new aspects wich are not considered.
The aim of the article is not to establish the sources
- “The court, whose function is to decide in accordance with international law such disputes as are submitted to it, sall 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) Subject to the provisions of article 59, 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.
- This provision shall not prejudice the power of the Court to decide a case ex aequo at bono , if the parties agree thereto.”
It’s a, b, c to make it clear that there is no hierarchy between sources.
The new rule modifies the previous one, the court is going to choose between the different sources of law the most precise to the case.
Paragraph d does not refer to a source of law, when the court has doubts on the interpretation it can use other methods establish by this paragraph. It can be used to interpret but not to base their resolution, because they are not sources.
New features
(...) pwp
Jus cogens (peremptory norms)
Difference between binding and peremptory norm. Every legal rule is binding because when we talk about norm is already on it the banding character all norms are binding because if not it will be another thing.
Jus cogens (peremptory norms) is banding to any state, it doesn’t matter whether they had agreed or not.
- Lack of hierarchy among sources of law but there is a hierarchy of norms. Peremptory norms are superior to banding norms. Because an international treaty can be changed by the agreement among states which take part on it, but if that international treaty contents a peremptory norm a new international treaty will not be enough to change it peremptory norms cannot be change by agreement of states, they can only be change by a new peremptory norm.
- We don’t have a list of peremptory norms, we have article 53 of Viena Convention 1969 where we can find the only written definition of what are peremptory norms in IL (add article) a norm is peremptory norm when all state consensus that it exists. o Rank: they can only be modified by subsequent norm having the same character jus cogens can only be modified by new jus cogens o Process: acquiescence of the essential components of the international community o Consequence: no derogation by agreement o Scope (“alcance”) and consent the discussion is about the extension of these norms that are jus cogens
- Examples: o Norms that are structural to contemporary international society, for example, the principle of equality sovereignty of states, or principle of good faith. o Norms relating to the protection of persons an people, for example, prohibition of genocide, apartheid, slavery, self determination of people. o Norms relating the protections and use of the environment, for example, prohibition of massive pollution.
UNIT 5: INTERNATIONAL CUSTOMARY LAW
CONCEPT
Art. 38 Statute of the International Court of Justice: Customary law is an “evidence of a general practice accepted as law”
We can find international law in the practice of states. It is very dynamic, it evolves with their practice.
In order to think there is a customary law are needed two elements:
- PRACTICE : it can be a material action, it can also be the minister of foreign affairs making a statement..., the parliament of a state approving a new law that shows a position of this state on an international issue. The absence of practice has also effects in international law acquiescence. Any kind of practice is not enough no create customary law, it must be consistence during a certain time (but how many time? There no established time, it depends on each case, the intensity...), it must be general: followed by a number of states o universal: obliged to all states because all have follow the practice. The state who says that the customary law does not exist is the one who has to prove it. o Local or regional customary rule: if some states have followed it. The state that invokes that the customary law has to prove it.
Persistent objector: if there is a general practice that is develop between states, but there is one state that don’t want that to become customary law, they have to object to it publicly. The rule may become not applicable to the objecting state.
Codification and progressive development of international law
This purpose is one of the facts why international law is adopted.
Codification in international law is the same as in internal law. To codify law means to select existing rules of law and put them together in a single text, in a specific order.
Why should we codify international law into treaties? Because treaties are more reliable than custom because it’s written so it’s more legally safe. Especially when international relations are increasing and there is more need to know existence and extension of rules.
How is being international law codified? At the beginning it was made by private organizations (private initiative). But that way, it wasn’t approved by states so they weren’t comfortable with them. In the League of Nations they started to have the first initiatives from official organizations. In 1945 with the UN charter it was established the International Law Commission as a subsidiary organ of the General Assembly; it is composed by experts of international law. The general assembly decide which are the subjects, then the international commission starts working on this subjects appointing special rapporteur (one member is charged of proposing an initial text about the subject), at the end the international law commission approves a text and is sent to the general assembly and they approve a resolution.
Art. 15 Statue of ILC: two roles
- Codification of existing laws, it doesn’t generate problems
- Progressive development, it produces discussions.
Viena convention: study for international treaties.
UNIT 7: INTERNATIONAL TREATIES II. CONCLUSION AND RESERVATIONS
Capacity to conclude treaties
Who can conclude international treaties? States and international organizations are the ones who can negotiate and conclude international treaties.
There is the possibility that some internal legal system, provide to a specific area to conclude them. From international perspective the subject is the state not the specific area.
Organizations can make international treaties in the areas that they are competent.
States and organizations need to be represented. Who represents the state?
- General rule: is the person who has full powers. Minister of foreign affairs in the full powers document establish who is the representative of the state for an international treaty.
- Exception: art. 7 vienna convention head of state/government, minister of foreign affairs., the ambassador of one state in another state has the capacity to establish treaties between the two countries.
What happens if a person who hasn’t capacity to conclude a treaty? It isn’t valid, but if the state is interested on it they can validate the treaty.
Steps of the treaty-making process
1. Negotiation: the representatives of the parties come into the room to express the will of their state. They discuss until they arrive at an agreement. It finished with the adoption 2. Adoption: all states agree with the treaty.
3. Authentication: by signature of representatives. The representative of the state agrees that he is signing the final text of the treaty with all its content. After the authentication nothing can be changed. Legal effects of authentication o Art. 18 VC: obligation not to defeat the object and purpose of a treaty prior to its entry into force. o Art. 77 VC: received all the information about the treaty o Rights to object any reservations of other state parties 4. Expression of consent: it’s in this moment when the state becomes part of the international treaty. One state can negotiate to adopt an international treaty but finally decided not to become part. Art. 11 VC: forms o Solemn consent: signature + ratification by the head of the state. o Simplified consent o Accession
Reservations
Concept: unilateral statement made by a State when consenting to a treaty whereby it purpose to exclude or modify the legal effect of certain provisions of the treaty in their application to the state.
There is the possibility that every state have to change on article or one part of the international treaty, just to change its interpretation, content or to exclude it. in bilateral treaties reservations are not accepts. But it is accepted in multilateral treaties because its purpose is that much states as possible become part of it.
Reservations are always unilateral. In order to be valid this unilateral declaration it has to be done at the moment of manifestation of consent. It has to be written (it can’t be oral) and notified to all states parting in the treaty. Limitation: the reservation cannot be against the purpose of the treaty.
Legal regime of reservations arts. 19 to 23 VC
1. Permissibility 2. The reserving state is a party to the treaty 3. Legal effects of the reservation a. Among non reserving states b. Between reserving and accepting states c. Reserving-objecting states
UNIT 8: INTERNATIONAL TREATIES III. OBSERVANCE
Many international treaties are made because international organizations push states to do it.
International law in international treaties is very flexible in the form to negotiate, the form to adopt it... Sates can make reservations to treaties, still when it has been adopted they can decide unilaterally to change one part of the treaty, the reservations can be accepted or rejected by the other states parties.
General principle in the application of international treaties : states parts in the treaty have to are bound by the treaty, and have to observe.
Pacta sunt servenda : good faith + duy among parties
Objective regimes: the treaty establishing the border between France and Spain is only between them but applicable to all.
TERMINATION OR SUSPENSION (arts 54-64)
Normally treaties are concluded indefinitely. But they can agree to end it, or a new international treaty between the same subjects about the same subject terminates the previous one.
If one of the parties violate an international treaty, this can be considered by other parties as a cause of termination.
If something happens that makes impossible the continuation of the application of the treaty
Suspension: the treaty stops producing effects for a certain time
Emerge of a new peremptory norm of general international law (art. 64).
Rebus sic stantibus: a fundamental change of circumstances (art. 62).
Denunciation or withdrawal at any moment by a party, it has to do it respecting the principle of good faith and giving some time for the states in order to prepare to the new situation
Procedure whenever one state consider there is a termination (arts. 65-68):
- In no one objects, it is granted
- Otherwise procedure to solve the dispute
AMENDMENT AND MODIFICATION (arts. 40-41)
General revision of the treaty opened to all states parties. Whenever only some parties want to modify the relations is a modification.
- Amendment: general revision of the treaty: all the parties must be informed and have the right to participate.
- Modification: agreement among a limited number of parties in their natural relations. It affects to a more important part
It is just a distinction because of the procedure
INVALIDITY OF THE TREATIES (arts. 42-72)
Important distinguish between invalidity from termination. Termination is when an international treaty produces effects and then it finished (is no longer in force), and invalidity is when the treaty cannot produce legal effects, it can enter into force, produce effects but if it is declare its invalidation the situation has to be restored to the situation before it entered into force because it has to be if it has never existed.
- Absolute invalidity : there is nothing to do, the treaty should be banished. o Coercion of a representative (art. 51): using force against the person that representative of the the state, there is no free consent. o Coercion of a State (art. 52): use of force against the state, there is no free consent. o Conflict with a prior peremptory norm (art. 53): jus cogens is over the agreement of the state.
- Relative invalidity : the state that is effect can decide to compensate the situation so that the treaty becomes valid if they have interest to continue on it:
o Ultra vires treaties : they have been made by no following the internal regulations of the state to express consent (for example: is needed the authorisation of the parliament, it can be given afterwards). o Error in the content of the treaty. o Fraud , the other state party has lied about some situations. o Corruption , when someone has paid the representative of the state for giving its consent. If the state decides to be still part of the treaty it can be. o Specific restriction on authority to express consent: The representative of the states don’t have full power to express consent
INTERPRETATION OF TREATIES (arts. 31-22 VC)
General rule:
- Good faith
- Primacy of the text: ordinary meaning of the terms of the treaty
- According to the context
- Teleological interpretation: goals of the states when they negotiate the international treaty
It is difficult to interpret international law.
Supplementary means (art. 32 VC):
- Preparatory works of the treaty
- Circumstances of its conclusion
Treaties in different languages (art. 33 VC):
- It has to be presumed that the text say the same thing
- The object and purpose prevails
Who can undertake it? International courts, experts, national courts, ministers of foreign affairs.
There is no one single interpretation.
UNIT 9: OTHER SOURCES AND AVIDENCE OF INTERNATIONAL LAW
General principles of law
Art. 38.1 c) ICJ Statute. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. International conventions, ... b. International custom, ... c. The general principles of law recognized by civilized nations
Concept: legal principles and reasoning established and applied in most domestic legal systems
“civilized nations”: outdated reference
Requirements:
- Must rule similar or analogical situations
- Must be transformed to adapt to international reality
