#10739 - Summary.Intl.Law - Public International Law

PART 1: SOURCES OF INTERNATIONAL LAW

Sources are important given that there is no legal international body ensuring enforcement. Further, there is no court that has international jurisdiction over all states. The ICJ only has the jurisdiction that states give it and the ICC has prosecutorial jurisdiction, but can only do so when states fail to prosecute of or there are no other legal mechanisms to prosecute.

Source 1: Statute of the International Court of Justice, Article 38

• Disputes submitted to the ICJ shall apply within the context of customary law (general state practice), international conventions (established rules expressly recognized by consenting states), general principles of law (come from states by ‘civilized nations’), judicial decisions and teachings of publicists

Source 2: Treaties

• Most important source of law: also referred to as agreements, accords, covenants, joint communiqués, pacts, etc.

• Vienna Convention on the Law of Treaties (VCLT); even non-signatories are bound by its provisions because it’s considered CIL; treaty making covered by Articles 7-17)

• States that do not sign them are not bound by their provisions (Article 34, VCLT) + North Sea Continental Shelf Case

• No prescribed format for treaties

  • Eastern Greenland Case: oral exchanges can constitute binding intl obligations

  • Qatar v Bahrain Maritime Delimitation Case: minutes of meetings can be used to denote set of obligations

  • Anglo-Iranian Oil Case: Agreement between state and non-state actor cannot create a treaty unless it’s an international organization.

• Treaties with Indigenous peoples are still to be recognized but they are not treated like other treaties

• Can be bilateral or multilateral

• 8 step process: accreditation, negotiation, adoption of text, authentication, ratification, accession, EIF, registration

Article 2: treaty is an international agreement concluded between states in written form and governed by IL

Article 2(1)(d) (reservations): a unilateral statement made by a state where it purports to exclude or to modify the legal effect of certain provisions of the treat in their application to that state.

Article 6: every state has the capacity to conclude treaties, except for non-state actors

TREATY MAKING PROCESS (7-15)

Article 7 (full powers): Representative of the state has the powers to negotiate and adopt text of a treaty, authenticate the text of the treaty and express the consent of the state to be bound. State must produce full powers in order to do so (have documentation showing that person has authority to represent state)

7(2): people with full powers include heads of state, heads of government, ministers of foreign affairs, heads of diplomatic missions have limited powers, delegates to international conferences are presumed to have power to negotiate and adopt treaty on behalf of state

• state cannot invalidate agreement made by someone with full powers

• in Canada, s. 132 of CA 1867 grants Parliament and the Government the power to perform obligations of treaties for Canada (no constitutional mandate requiring government to pass treaties with Parliament, but they must keep in mind the division of powers)

• the Foreign Minister has legal capacity to oversee treaty making process, but many departments and staff are involved in the negotiation process

• full powers in Canada are conferred to the order of the Governor in Council

Article 8: when acts must be confirmed by the state

Finalizing Treaty Text (9-10)

Article 9(1) (adoption of text): states must unanimously agree to adopt text (bilateral)

Article 9(2): if negotiated at international conference, adoption takes place by 2/3 vote of states (unless 2/3 agree to adoption by different majority)

Article 10 (authentication of text): (a) text established as authentic and definitive by procedure as may be agreed between negotiating states. (b) If there is no agreement, the default is by signature (and variants).

• Signature authenticates the treaty as negotiated (it is not consent to be bound)

Expression of Consent to be Bound (11-15)

Article 11 (expression of consent): expression of consent can be done by signature, exchange of instruments, ratification, acceptance, approval or accession or any other means agreed.

Article 12: consent to be bound expressed by signature where the state so provides or the negotiating states agree that it is sufficient

• Treaties can be open for signature after authenticated

Article 14(1) (ratification): consent to be bound is expressed by ratification when:

1. the treaty so provides

2. established by the states so agreed

3. a treaty is signed subject to ratification

4. intention to sign the treaty subject to ratification appears in the full powers

• Ratification allows for the domestic constitutional steps to be fulfilled

• States that don’t originally sign a treaty cannot ratify it but may later sign it to become a party

14(2): conditions for consent to be bound expressed by acceptance or approval are similar to those for ratification.

Article 15 (accession): consent of a state to be bound by a treaty is expressed by accession when: treaty so provides, states so agree, or all parties have subsequently agreed.

North Sea Continental Shelf Cases (FRG v Denmark; FRG v Netherlands) 1969

F: FRG had signed but not ratified 1958 Geneva Convention on Continental Shelf

Ratio: It is not lightly presumed that a state which has not carried out the formalities of a treaty is somehow bound by another way.

Article 18: obligation not to defeat object and purpose in effect of treat (argued that signature imposes moral obligation to seek ratification approval).

Article 24 (EIF): EIF as agreed by parties but not agreed as soon as all negotiating states have expressed consent to be bound (some treaties require X number of ratifications before EIF)

Article 25: treaty may provide that it applies before entry into force

• Ex. Landmines Convention (ICBL)

Article 39 + 41 (AMENDMENTS): process to amend treaties

Article 46: competence under domestic law to conclude treaty

Article 50 – corruption of state official

Article 51: coercion of state official

Article 80 (Registration and Publication): Final stage after EIF, treaties are transmitted to Secretariat of the UN for registration and publication.

• *Corollary Article 102 of UN Charter: treaties must be registered with UN Secretariat. If not, they cannot be invoked before any UN organ

TREATY RIGHTS AND OBLIGATIONS: RESERVATIONS

• derogation form terms of treaties

• some treaties prohibit reservations (Ottawa Land Mines Treat)

• some place limitations on what can be reserved to (International Convention on Elimination of all Forms of Racial Discrimination)

Advisory Opinion (AO) Reservations to Genocide Convention Case 1951 (*Over 40 reservations)

Is Reserving state a party if reservation objected to by 1 or more but not all parties?

• YES = reserving state a party as long as reservation is not contrary to object and purpose of the treaty

If YES, what is effect of reservation between reserving state and 1) objecting states and b) accepting, non-objecting states?

• Objecting state may treat reserving state as non-party

• Non-objecting state treats reserving state as party

VCLT Article 19 (General rule): Reservations are permissible if not prohibited by the treaty or incompatible with the object and purpose of the treaty.

Article 20 (Permissible Reservations)

1. if reservation is expressly authorized there is no need for acceptance unless the treaty provides

2. if limited number of parties and object and purpose suggest whole treaty must apply to all parties, reservation requires consent of all parties

3. if treaty is constituent instrument of international organization, reservation requires consent of competent organ

4. if treaty allows reservations even where objections exist

   1. acceptance of reservation -> reserving state = party through accepting party

   2. objection to reservation -> reserving state = party vis a vis accepting party unless objecting state expressly states otherwise

5. if no objection to R after 12 mo of notification or by date of sig/rat = tacit acceptance

Article 21 (Legal Effect of Permissible Reservations)

Modifies

1a) obligations of reserving state re other states to extent of reservation

1b) Provisions to which reservation relates to same extent for other party re reserving party

2) reservation has no effect on obligations between other parties

3) if state objects to reservation then provisions affected by reservation do not apply between objecting and reserving states

Article 53: a treaty is void if at the time of its conclusion, it conflicts with a preemptory norm of general international law (which is accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted).

• We are unsure as to which rules are jus cogens rules (should look to draft articles of state responsibility)

Human Rights Treaties are distinguished from others. These include obligations that are owed to all states (erga omnes). All states have a legal interest in their protection (Barcelona Traction Case). The Human Rights Committee of the UN interprets reservations narrowly. They have rejected the classical rules and will sever reservation if it is incompatible with the object and purpose of the treaty.

Bellios v Switzerland

Ratio: Court held that reservation by Swiss was not valid because it was too broad.

LEGAL EFECT OF TREATIES

*Treaty is expression of CIL; not treaty/provision that binds third states but CIL

Article 26 (pacta sunt servana): treaty in force is binding upon the parties...